Blueprint
Exhibit 3.1
AMENDED AND RESTATED BYLAWS
OF
CHARLIE’S HOLDINGS, INC.,
A NEVADA CORPORATION
ARTICLE I
OFFICES
1.1. Registered
Office. The registered office
of Charlie’s Holdings, Inc., a Nevada corporation (the
“Corporation”),
in the State of Nevada shall be at
such location within the State of Nevada as the Board of Directors
of the Corporation (“Board of
Directors”) shall
determine from time to time.
1.2.
Other Offices. The
Corporation may also
have and maintain an office or principal place of business at such
location, either
within or outside
of the State of Nevada,
as may be fixed by the Board of
Directors from time to time, and may also have other offices at
such other location,
either within
or outside
of the State of Nevada,
as the Board of Directors may
determine from time to time or the business of the Corporation may
require.
ARTICLE II
STOCKHOLDERS’ MEETINGS
2.1.
Place of Meetings. Meetings of the stockholders of the Corporation
shall be held at such location, either within or without the State
of Nevada, as may be designated from time to time by the Board of
Directors, or, if not so designated, then at an office of the
Corporation maintained pursuant to Section 1.2
hereof.
2.2.
Annual Meeting.
(a) The
annual meeting of the stockholders of the Corporation, for the
purpose of election of directors and for such other business as may
lawfully come before it, shall be held on such date and at such
time as may be designated from time to time by the Board of
Directors.
(b) At
an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting.
To be properly brought before an annual meeting, business must be:
(A) specified in the notice of meeting (or any supplement thereto)
given by or at the direction of 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. For business to be
properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a stockholder’s
notice must be delivered to or mailed and received at the principal
executive offices of the Corporation not later than the close of
business on the sixtieth (60th) day nor earlier than the close of
business on the ninetieth (90th) day prior to the first anniversary
of the preceding year’s annual meeting; provided,
however, that in the event that
no annual meeting was held in the previous year or the date of the
annual meeting has been changed by more than thirty (30) days from
the date contemplated at the time of the previous year’s
proxy statement, notice by the stockholder to be timely must be so
received not earlier than the close of business on the ninetieth
(90th) day prior to such annual meeting and not later than the
close of business on the later of the sixtieth (60th) day prior to
such annual meeting or, in the event public announcement of the
date of such annual meeting is first made by the Corporation fewer
than seventy (70) days prior to the date of such annual meeting,
the close of business on the tenth (10th) day following the day on
which public announcement of the date of such meeting is first made
by the Corporation. A stockholder’s notice to the Secretary
shall set forth as to each matter the stockholder proposes to bring
before the annual meeting: (i) a brief description of the business
desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting; (ii) the name and
address, as they appear on the Corporation’s books, of the
stockholder proposing such business; (iii) the class and number of
shares of the Corporation which are beneficially owned by the
stockholder; (iv) any material interest of the stockholder in such
business; and (v) any other information that is required to be
provided by the stockholder pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the
“Exchange
Act”), in his capacity as
a proponent to a stockholder proposal. Notwithstanding the
foregoing, in order to include information with respect to a
stockholder proposal in the proxy statement and form of proxy for a
stockholder’s meeting, stockholders must provide notice as
required by the regulations promulgated under the
Exchange Act.
Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at any annual meeting except in
accordance with the procedures set forth in this paragraph (b). The
chairman of the annual meeting shall, if the facts warrant,
determine and declare at the annual meeting that business was not
properly brought before the annual meeting and in accordance with
the provisions of this paragraph (b), and, if he should so
determine, he shall so declare at the annual meeting that any such
business not properly brought before the annual meeting shall not
be transacted.
(c) Only
persons who are confirmed in accordance with the procedures set
forth in this paragraph (c) shall be eligible for election as
directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at an annual meeting of
stockholders by or at the direction of the Board of Directors or by
any stockholder of the Corporation entitled to vote in the election
of directors at the annual meeting who complies with the notice
procedures set forth in this paragraph (c). Such nominations, other
than those made by or at the direction of the Board of Directors,
shall be made pursuant to timely notice in writing to the Secretary
of the Corporation in accordance with the provisions of paragraph
(b) of this Section 2.2. Such stockholder’s notice shall set
forth (i) as to each person, if any, whom the stockholder proposes
to nominate for election or re-election as a director: (A) the
name, age and business address or residence address of such person;
(B) the principal occupation or employment of such person; (C) the
class and number of shares of the Corporation which are
beneficially owned by such person; (D) a description of all
arrangements or understandings between the stockholder and each
nominee and any other person or persons (naming such person or
persons) pursuant to which the nominations are to be made by the
stockholder; and (E) any other information relating to such person
that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Exchange Act (including
without limitation such person’s written consent to being
named in the proxy statement, if any, as a nominee and to serving
as a director if elected), and (ii) as to such stockholder giving
notice, the information required to be provided pursuant to
paragraph (b) of this Section 2.2. At the request of the Board of
Directors, any person nominated by a stockholder for election as a
director shall furnish to the Secretary of the Corporation that
information required to be set forth in the stockholder’s
notice of nomination which pertains to the nominee. No person shall
be eligible for election as a director of the Corporation unless
nominated in accordance with the procedures set forth in this
paragraph (c). The chairman of the annual meeting shall, if the
facts warrant, determine and declare at the annual meeting that a
nomination was not made in accordance with the procedures
prescribed by these Bylaws, and if he should so determine, he shall
so declare at the annual meeting, and the defective nomination
shall be disregarded.
(d) For
purposes of this Section 2.2, “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, 14 or
15(d) of the Exchange Act.
2.3
Special
Meetings.
(a) Special
meetings of the stockholders of the Corporation may be called, for
any purpose or purposes, by (i) the Chairman of the Board of
Directors, (ii) the Chief Executive Officer, or (iii) the Board of
Directors pursuant to a resolution adopted by a majority of the
total number of authorized directors (whether or not there exist
any vacancies in previously authorized directorships at the time
any such resolution is presented to the Board of Directors for
adoption), and shall be held at such place, on such date, and at
such time as the Board of Directors, shall
determine.
(b) If
a special meeting of stockholders is called by any person or
persons other than the Board of Directors, the request shall be in
writing, specifying the general nature of the business proposed to
be transacted, and shall be delivered personally or sent by
registered mail or by telegraphic or other facsimile transmission
to the Chairman of the Board of Directors, the Chief Executive
Officer, or the Secretary of the Corporation. No business may be
transacted at such special meeting otherwise than specified in such
notice. The Board of Directors shall determine the time and place
of such special meeting, which shall be held not less than
thirty-five (35) nor more than one hundred twenty (120) days after
the date of the receipt of the request. Upon determination of the
time and place of the special meeting, the officer receiving the
request shall cause notice to be given to the stockholders entitled
to vote, in accordance with the provisions of Section
2.4 of
these Bylaws. If the notice of a special meeting of stockholders is
not given within sixty (60) days after the receipt of the request,
the person or persons requesting the special meeting may set the
time and place of the special meeting and give the notice. Nothing
contained in this paragraph (b) shall be construed as limiting,
fixing, or affecting the time when a special meeting of
stockholders called by action of the Board of Directors may be
held.
2.4.
Notice of Meetings. Except as otherwise provided by law or the
Articles of Incorporation, written notice of each meeting of
stockholders, whether annual or special, shall be given not less
than ten (10) nor more than sixty (60) days before the date of the
meeting to each stockholder entitled to vote at such meeting, such
notice to specify the place, date and hour and purpose or purposes
of the meeting. Notice of the time, place and purpose of any
meeting of stockholders may be waived in writing, signed by the
person entitled to notice thereof, either before or after such
meeting, and will be waived by any stockholder by his attendance
thereat in person or by proxy, 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. Any stockholder so waiving
notice of such meeting shall be bound by the proceedings of any
such meeting in all respects as if due notice thereof had been
given.
2.5.
Quorum. At all meetings
of stockholders, whether annual or special, except where otherwise
provided by statute or by the Articles of Incorporation, or by
these Bylaws, the presence, in person or by proxy duly authorized,
of the holder or holders of not less than fifty percent (50%) of
the outstanding shares of stock entitled to vote shall constitute a
quorum for the transaction of business. In the absence of a quorum,
any meeting of stockholders, whether annual or special, may be
adjourned, from time to time, either by the chairman of the meeting
or by vote of the holders of a majority of the shares represented
thereat, but no other business shall be transacted at such meeting.
The stockholders present at a duly called or convened meeting, at
which a quorum is present, may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders
to leave less than a quorum. Except as otherwise provided by law,
the Articles of Incorporation or these Bylaws, all action taken by
the holders of a majority of the votes cast, excluding abstentions,
at any meeting at which a quorum is present shall be valid and
binding upon the Corporation; provided,
however, that directors shall
be elected by a plurality of the votes of the shares present in
person or represented by proxy at the meeting and entitled to vote
on the election of directors. Where a separate vote by a class or
classes or series is required, except where otherwise provided by
the statute or by the Articles of Incorporation or these Bylaws, a
majority of the outstanding shares of such class or classes or
series, present in person or represented by proxy, shall constitute
a quorum entitled to take action with respect to that vote on that
matter and, except where otherwise provided by the statute or by
the Articles of Incorporation or these Bylaws, the affirmative vote
of the majority (plurality, in the case of the election of
directors) of the votes cast, including abstentions, by the holders
of shares of such class or classes or series shall be the act of
such class or classes or series.
2.6
Adjournment and Notice of Adjourned
Meetings. Any meeting of
stockholders, whether annual or special, may be adjourned from time
to time either by the chairman of the meeting or by the vote of a
majority of the shares casting votes, excluding abstentions. 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. At the
adjourned meeting, the Corporation may transact any business which
might have been transacted at the original meeting. 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.
2.7. Voting
Rights. For the purpose
of determining those stockholders entitled to vote at any meeting
of the stockholders, whether annual or special, except as otherwise
provided by law, only persons in whose names shares stand on the
stock records of the Corporation on the record date, as provided in
Section 2.9 of these Bylaws, shall be entitled to vote at any
meeting of stockholders. Every person entitled to vote shall have
the right to do so either in person or by an agent or agents
authorized by a proxy granted in accordance with Nevada law. An
agent so appointed need not be a stockholder. No proxy shall be
voted after six (6) months from its date of creation unless the
proxy provides for a longer period, which may not exceed seven (7)
years from the date of its creation.
2.8.
Joint Owners of Stock. If
shares or other securities having voting power stand of record in
the names of two (2) or more persons, whether fiduciaries, members
of a partnership, joint tenants, tenants in common, tenants by the
entirety, or otherwise, or if two (2) or more persons have the same
fiduciary relationship respecting the same shares, unless the
Secretary is given written notice to the contrary and is furnished
with a copy of the instrument or order appointing them or creating
the relationship wherein it is so provided, their acts with respect
to voting shall have the following effect: (a) if only one (1)
votes, his act binds all; (b) if more than one (1) votes, the act
of the majority so voting binds all; and (c) if more than one (1)
votes, but the vote is evenly split on any particular matter, each
faction may vote the securities in question
proportionally.
2.9.
List of Stockholders. The
Secretary shall prepare and make, at least ten (10) days before
every meeting of stockholders, whether annual or special, a
complete list of the stockholders entitled to vote at said meeting,
arranged in alphabetical order, showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days
prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice
of the meeting, or, if not specified, at the place where the
meeting is to be held. The list shall be produced and kept at the
time and place of meeting during the whole time thereof and may be
inspected by any stockholder who is
present.
2.10.
Action Without Meeting. No action shall be taken by the stockholders
except at an annual or special meeting of stockholders called in
accordance with these Bylaws, or by the written consent of the
stockholders in accordance with Chapter 78 of the Nevada Revised
Statutes.
2.11.
Organization.
(a) At
every meeting of stockholders, the Chairman of the Board of
Directors, or, if a Chairman has not been appointed or is absent,
the Chief Executive Officer, or, if the Chief Executive Officer is
absent, a chairman of the meeting chosen by a majority in interest
of the stockholders entitled to vote, present in person or by
proxy, shall act as chairman. The Secretary, or, in his absence, an
Assistant Secretary directed to do so by the Chief Executive
Officer, shall act as secretary of the
meeting.
(b) The
Board of Directors shall be entitled to make such rules or
regulations for the conduct of meetings of stockholders as it shall
deem necessary, appropriate or convenient. Subject to such rules
and regulations of the Board of Directors, if any, the chairman of
the meeting shall have the right and authority to prescribe such
rules, regulations and procedures and to do all such acts as, in
the judgment of such chairman, are necessary, appropriate or
convenient for the proper conduct of the meeting, including,
without limitation, establishing an agenda or order of business for
the meeting, rules and procedures for maintaining order at the
meeting and the safety of those present, 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 shall permit, restrictions on
entry to the meeting after the time fixed for the commencement
thereof, 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.
Unless and to the extent determined by the Board of Directors or
the chairman of the meeting, meetings of stockholders shall not be
required to be held in accordance with rules of parliamentary
procedure.
(c) Stockholders
may participate in a meeting of the stockholders by means of a
telephone conference or similar method of communication by which
all individuals participating in the meet can hear each other.
Participation in a meeting of the stockholders pursuant to this
section constitutes presence in person at the
meeting.
ARTICLE III
DIRECTORS
3.1.
Number, Tenure and Qualification.
(a) The
authorized number of directors of the Corporation shall be not less
than one (1) nor more than seven (7), with the exact number of directors fixed at
seven (7). The
exact number may be amended
only by the vote or written consent of a majority of the
outstanding shares of the Corporation’s voting
stock; provided,
however, that no decrease in the number of directors
shall shorten the term of any incumbent
directors.
(b) Each
director who is elected as provided in this Section 3.1 shall serve
until his or her successor is duly elected and
qualifies.
(c) Directors
shall be elected at the annual meeting of the stockholders of the
Corporation by a plurality of votes pursuant to Section 2.5 of
these Bylaws. A separate vote for the election of directors shall
be held at each annual meeting of the stockholders of the
Corporation for each class of directors having nominees for
election at such meeting, if any.
(d) Directors
need not be stockholders unless so required by the Articles of
Incorporation. Each director must be a natural person at least 18
years of age. If for any cause, the directors shall not have been
elected at an annual meeting of
the stockholders of the Corporation, they may be elected as soon
thereafter as convenient at a special meeting of the stockholders
called for that purpose in the manner provided in these
Bylaws.
3.2.
Powers. The powers of the
Corporation shall be exercised, its business conducted and its
property controlled by the Board of Directors, except as may be
otherwise provided by statute or by the Articles of
Incorporation.
3.3.
Vacancies. Unless
otherwise provided in the Articles of Incorporation, any vacancies
on the Board of Directors resulting from death, resignation,
disqualification, removal or other causes and any newly created
directorships resulting from any increase in the number of
directors, shall,
unless the Board of Directors
determines by resolution that any such vacancies or newly created
directorships shall be filled by stockholder vote, be filled only
by the affirmative vote of a majority of the directors then in
office, even if by less than a quorum of the Board of Directors.
Any director elected in accordance with the preceding sentence
shall hold office for the remainder of the full term of the
director for which the vacancy was created or occurred and until
such director’s successor shall have been elected and
qualified. A vacancy in the Board of Directors shall be deemed to
exist under this Bylaw in the case of the death, removal or
resignation of any director.
3.4.
Resignation. Any director
may resign at any time by delivering his written resignation to the
Secretary, such resignation to specify whether it will be effective
at a particular time, upon receipt by the Secretary or at the
pleasure of the Board of Directors. If no such specification is
made, it shall be deemed effective at the pleasure of the Board of
Directors. When one or more directors shall resign from the Board
of Directors, effective at a future date, a majority of the
directors then in office, including those who have so resigned,
shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall
become effective, and each director so chosen shall hold office for
the unexpired portion of the term of the director whose place shall
be vacated and until his successor shall have been duly elected and
qualified.
3.5.
Removal. Subject to the
Articles of Incorporation, any director may be removed by the
affirmative vote of the holders of a majority of the outstanding
shares of the Corporation then entitled to vote, with or without
cause. The Board of Directors of the corporation, by majority vote,
may declare vacant the office of a director who has been convicted
of a felony or who has been declared incompetent by an order of a
court of competent jurisdiction.
3.6.
Meetings.
(a) Annual
Meetings. The annual
meeting of the Board of Directors shall be held immediately after
the annual meeting of stockholders of the Corporation and at the
place where such meeting is held. No notice of an annual meeting of
the Board of Directors shall be necessary and such meeting shall be
held for the purpose of electing officers and transacting such
other business as may lawfully come before
it.
(b) Regular
Meetings. Except as
hereinafter otherwise provided, regular meetings of the Board of
Directors shall be held in an office of the Corporation maintained
pursuant to Section 1.2 hereof. Unless otherwise restricted by the
Articles of Incorporation, regular meetings of the Board of
Directors may also be held at any place within or outside the State
of Nevada which has been designated by resolution of the Board of
Directors or the written consent of all
directors.
(c) Special
Meetings. Unless
otherwise restricted by the Articles of Incorporation, special
meetings of the Board of Directors may be held at any time and
place within or outside the
State of Nevada whenever called by the Chairman of the Board, the
Chief Executive Officer or any two of the
directors.
(d) Telephone
Meetings. Any member of
the Board of Directors, or of any committee thereof, may
participate in any meeting of the Board of Directors by means of
conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each
other, and participation in a meeting by such means shall
constitute presence in person at such
meeting.
(e) Notice
of Meetings. Notice of
the time and place of all special meetings of the Board of
Directors shall be delivered: (i) orally (in person or by
telephone) or in writing through personal delivery or electronic
transmission (by any form of electronic transmission consented to
by the recipient, which consent may be oral), in either case at
least twenty-four (24) hours before the date and time of the
meeting; or (ii) through registered or certified mail (postage
prepaid), return receipt requested, at least
three (3)
calendar days before the date of the meeting. Unless otherwise
indicated in the notice thereof, any and all business may be
transacted at a special meeting of the Board of Directors. Notice
of any meeting of the Board of Directors may be waived in writing,
which writing may be an electronic transmission,
at any time before or after the meeting and will be waived by any
director by attendance at such meeting, except when the director
attends the meeting for the sole purpose of objecting, at the
beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or
convened.
(f) Waiver
of Notice. The
transaction of all business at any meeting, whether annual or
special, of the Board of Directors, or any committee thereof,
however called or noticed, or wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice, if
a quorum be present and if, either before or after the meeting,
each of the directors not present shall sign a written waiver of
notice. All such waivers shall be filed with the corporate records
or made a part of the minutes of the
meeting.
3.7.
Quorum and Voting.
(a) Unless
the Articles of Incorporation requires a greater number and except
with respect to indemnification questions arising under Section
10.1 hereof, for which a quorum shall be one-third of the exact
number of directors fixed from time to time in accordance with the
Articles of Incorporation, a quorum of the Board of Directors shall
consist of a majority of the exact number of directors fixed from
time to time by the Board of Directors in accordance with the
Articles of Incorporation;
provided,
however, at any meeting whether
a quorum be present or otherwise, a majority of the directors
present may adjourn from time to time until the time fixed for the
next regular meeting of the Board of Directors, without notice
other than by announcement at the
meeting.
(b) At
each meeting of the Board of Directors at which a quorum is
present, all questions and business shall be determined by the
affirmative vote of a majority of the directors present, unless a
different vote be required by law, the Articles of Incorporation or
these Bylaws.
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, whether annual or special, may be taken without
a meeting, if all members of the Board of Directors or committee,
as the case may be, consent thereto in writing, and such writing or
writings are filed with the minutes of proceedings of the Board of
Directors or committee.
3.9.
Fees and Compensation. Directors shall be entitled to such annual
compensation and expense reimbursements (if applicable) for
their annual service on the Corporation’s Board of Directors,
in the manner and
upon such terms as may be approved by the Board of Directors from
time to time. In addition, if so approved by resolution of
the Board of Directors, directors also shall be entitled to
separate and additional compensation and expense reimbursements, if
any, for their attendance and participation, in person or by
telephone or video conference, at any special meeting of the Board
of Directors,
for their annual service on a
committee of the Board of Directors, and/or for
their attendance and participation, in person or by telephone or
video conference, at
any meeting of a committee of the Board of Directors on which any
such director may serve from time to time. Nothing herein contained
shall be construed to preclude any director from serving the
Corporation in any other capacity as an officer, agent, employee,
or otherwise and receiving compensation
therefor.
3.10.
Committees.
(a) The
Board of Directors may, by resolution passed by a majority of the
Board of Directors, from time to time appoint committees of the
Board of Directors as may be permitted by law. Such committees
appointed by the Board of Directors shall consist of one (1) or
more members of the Board of Directors and shall have such powers
and perform such duties as may be prescribed by the resolution or
resolutions creating such committees.
(b) Unless
the Board of Directors shall otherwise provide,
each member of a committee of the
Board of Directors shall serve a term on the committee coexistent
with such member’s term on the Board of Directors. The Board
of Directors, subject to the provisions of subsection (a) of this
Bylaw may at any time increase or decrease the number of members of
a committee or terminate the existence of a committee. The
membership of a committee member shall terminate on the date of his
death or voluntary resignation from the committee or from the Board
of Directors. The Board of Directors may at any time for any reason
remove any individual committee member and the Board of Directors
may fill any committee vacancy created by death, resignation,
removal or increase in the number of members of the committee. The
Board of Directors 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, and, in
addition, in the absence or disqualification of any member of a
committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute
a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or
disqualified member.
(c) Unless
the Board of Directors shall otherwise provide, regular meetings of
any committee appointed pursuant to this Section 3.10 shall be held
at such times and places as are determined by the Board of
Directors, or by any such committee, and when notice thereof has
been given to each member of such committee, no further notice of
such regular meetings need be given thereafter. Special meetings of
any such committee may be held at any place which has been
determined from time to time by such committee, and may be called
by any director who is a member of such committee, upon written
notice to the members of such committee of the time and place of
such special meeting,
given in the manner provided for the
giving of written notice to members of the Board of Directors of
the time and place of special meetings of the Board of Directors.
Notice of any special meeting of any committee may be waived in
writing at any time before or after the meeting and will be waived
by any director by attendance thereat, except when the director
attends such special 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. A majority
of the authorized number of members of any such committee shall
constitute a quorum for the transaction of business, and the act of
a majority of those present at any meeting at which a quorum is
present shall be the act of such
committee.
3.11.
Organization. At every
meeting of the directors, the Chairman of the Board of Directors,
or, if a Chairman has not been appointed or is absent, the Chief
Executive Officer, or if the Chief Executive Officer is absent, the
most senior Vice President, or, in the absence of any such officer,
a chairman of the meeting chosen by a majority of the directors
present, shall preside over the meeting. The Secretary, or in his
absence, an Assistant Secretary directed to do so by the Chief
Executive Officer, shall act as secretary of the
meeting.
ARTICLE IV
OFFICERS
4.1.
Election. The Board of
Directors shall elect and appoint a Chief Executive Officer, a
President, a Secretary and a Treasurer at its annual meeting or at
such other time,
or times,
as the Board of Directors shall
determine. The Board of Directors may from time to time, by
resolution, elect or appoint such other officers and agents as it
may deem advisable and shall have such powers and duties and be
paid such compensation as may be directed by the Board of
Directors. Any individual may hold two or more
offices. The election or appointment of an officer shall not
of itself create contract rights.
4.2. Tenure and Duties of
Officers.
(a) General. All
officers shall hold office at the pleasure of the Board of
Directors and until their successors shall have been duly elected
and qualified, unless sooner removed. Any officer elected or
appointed by the Board of Directors may be removed at any time by
the Board of Directors. If the office of any officer becomes vacant
for any reason, the vacancy may be filled by the Board of
Directors.
(b) Duties
of Chairman of the Board of Directors. The Chairman of the Board of Directors, when
present, shall preside at all meetings of the stockholders and the
Board of Directors. The Chairman of the Board of Directors shall
perform other duties commonly incident to his office and shall also
perform such other duties and have such other powers as the Board
of Directors shall designate from time to time. If there is no
Chief Executive Officer, then the Chairman of the Board of
Directors shall also serve as the Chief Executive Officer of the
Corporation and shall have the powers and duties prescribed in
paragraph (c) of this Section 4.2.
(c) Duties
of Chief Executive Officer The Chief Executive Officer shall preside at all
meetings of the stockholders and at all meetings of the Board of
Directors, unless the Chairman of the Board of Directors has been
appointed and is present. The Chief Executive Officer shall,
subject to the control of the Board of Directors, have general
supervision, direction and control of the business and officers of
the Corporation. The Chief Executive Officer shall perform other
duties commonly incident to his office and shall also perform such
other duties and have such other powers as the Board of Directors
shall designate from time to time.
(d) Duties
of President. The
President, subject to the supervision and control of the Board of
Directors, any duly authorized committee thereof, and the Chief
Executive Officer, shall in general actively supervise and control
the business and affairs of the Corporation and, in the Chief
Executive Officer’s absence, at the request of the Board of
Directors, the President shall perform all of the duties of the
Chief Executive Officer and, in so performing, shall have all the
powers of, and be subject to all restrictions upon, the Chief
Executive Officer. The President shall perform such other duties
and have such other powers which are delegated and assigned to him
or her by the Board of Directors, the Chief Executive Officer,
these Bylaws or as may be provided by
law.
(e) Duties
of Vice Presidents. The
Vice Presidents shall act under the direction of the President and
in the absence or disability of the President shall perform the
duties and exercise the powers of the President. They shall perform
such other duties and have such other powers as the President or
the Board of Directors may from time to time prescribe. The Board
of Directors may designate one or more Executive Vice Presidents or
may otherwise specify the order of seniority of the Vice
Presidents. Unless otherwise specified, Executive Vice Presidents
are senior to Vice Presidents. The duties and powers of the
President shall descend to the Vice Presidents in such specified
order of seniority. An Executive Vice President may sign and
execute in the name of the Corporation deeds, mortgages, bonds,
contracts and other instruments, except in cases in which the
signing and execution thereof shall be expressly delegated by
resolution of the Board of Directors or by these bylaws to some
other officer or agent of the Corporation or shall be required by
applicable law otherwise to be signed or
executed.
(f) Duties
of Secretary. The
Secretary shall attend all meetings of the stockholders and of the
Board of Directors and shall record all acts and proceedings
thereof in the minute book of the Corporation. The Secretary shall
give notice in conformity with these Bylaws of all meetings of the
stockholders and of all meetings of the Board of Directors and any
committee thereof requiring notice. The Secretary shall perform all
other duties given him in these Bylaws and other duties commonly
incident to his office and shall also perform such other duties and
have such other powers as the Board of Directors shall designate
from time to time. The Chief Executive Officer or the President may
direct any Assistant Secretary to assume and perform the duties of
the Secretary in the absence or disability of the Secretary, and
each Assistant Secretary shall perform other duties commonly
incident to his office and shall also perform such other duties and
have such other powers as the Board of Directors, the Chief
Executive Officer or the President shall designate from time to
time.
(g) Duties
of Treasurer. The
Treasurer shall keep or cause to be kept the books of account of
the Corporation in a thorough and proper manner and shall render
statements of the financial affairs of the Corporation in such form
and as often as required by the Board of Directors, the Chief
Executive Officer or the President. The Treasurer, subject to the
order of the Board of Directors, shall have the custody of all
funds and securities of the Corporation. The Treasurer shall
perform other duties commonly incident to his office and shall also
perform such other duties and have such other powers as the Board
of Directors, the Chief Executive Officer or the President shall
designate from time to time.
4.3.
Delegation of Authority. The Board of Directors may from time to time
delegate the powers or duties of any officer to any other officer
or agent, notwithstanding any provision
hereof.
4.4.
Resignations. Any officer
may resign at any time by giving written notice to the Board of
Directors or to the Chief Executive Officer or to the Secretary.
Any such resignation shall be effective when received by the person
or persons to whom such notice is given, unless a later time is
specified therein, in which event the resignation shall become
effective at such later time. Unless otherwise specified in such
notice, the acceptance of any such resignation shall not be
necessary to make it effective. Any resignation shall be without
prejudice to the rights, if any, of the Corporation under any
contract with the resigning officer.
4.5.
Removal. Any officer may
be removed from office at any time, either with or without cause,
by the affirmative vote of a majority of the directors in office at
the time, or by the unanimous written consent of the directors in
office at the time, or by any committee or superior officers upon
whom such power of removal may have been conferred by the Board of
Directors.
ARTICLE V
EXECUTION OF CORPORATE INSTRUMENTS AND
VOTING
OF SECURITIES OWNED BY THE CORPORATION
5.1.
Execution of Corporate Instrument. The Board of Directors may, in its discretion,
determine the method and designate the signatory officer or
officers, or other person or persons, to execute on behalf of the
Corporation any corporate instrument or document, or to sign on
behalf of the Corporation the corporate name without limitation, or
to enter into contracts on behalf of the Corporation, except where
otherwise provided by law or these Bylaws, and such execution or
signature shall be binding upon the
Corporation.
Unless
otherwise specifically determined by the Board of Directors or
otherwise required by law, promissory notes, deeds of trust,
mortgages and other evidences of indebtedness of the Corporation,
and other corporate instruments or documents requiring the
corporate seal, and certificates of shares of stock owned by the
Corporation, shall be executed, signed or endorsed by the Chairman
of the Board of Directors, the Chief Executive Officer, the
President,
any Vice President, the
Secretary,
the Treasurer or
such other person as may be authorized by the Board of Directors.
All other instruments and documents requiring the corporate
signature, but not requiring the corporate seal, may be executed as
aforesaid or in such other manner as may be directed by the Board
of Directors.
All checks and
drafts drawn on banks or other depositaries on funds to the credit
of the Corporation or in special accounts of the Corporation shall
be signed by such person or persons as the Board of Directors shall
authorize so to do.
Unless
authorized or ratified by the Board of Directors or within the
agency power of an officer, no officer, agent or employee shall
have any power or authority to bind the Corporation by any contract
or engagement or to pledge its credit or to render it liable for
any purpose or for any amount.
5.2.
Voting of Securities Owned by the
Corporation. All stock
and other securities of other corporations owned or held by the
Corporation for itself, or for other parties in any capacity, shall
be voted, and all proxies with respect thereto shall be executed,
by the person authorized so to do by resolution of the Board of
Directors, or, in the absence of such authorization, by the
Chairman of the Board of Directors, the Chief Executive Officer,
the President, or any Vice President.
ARTICLE VI
SHARES OF STOCK
6.1.
Form and Execution of Certificates.
(a) Every
holder of stock in the Corporation shall be entitled to have a
certificate signed by or in the name of the Corporation by officers
or agents designated by the Board of Directors for the purpose,
certifying the number of shares of stock owned by him, her or it in
the Corporation.
Whenever such certificate is
countersigned or otherwise authenticated by a transfer agent or a
transfer clerk and by a registrar (other than the Corporation),
then a facsimile of the signatures of any corporate officers or
agents, the transfer agent, transfer clerk or the registrar of the
Corporation may be printed or lithographed upon the certificate in
lieu of the actual signatures. In the event that any officer or
officers who have signed, or whose facsimile signatures have been
used on any certificate or certificates for stock cease to be an
officer or officers because of death, resignation or other reason,
before the certificate or certificates for stock have been
delivered by the Corporation, the certificate or certificates may
nevertheless be adopted by the Corporation and be issued and
delivered as though the person or persons who signed the
certificate or certificates, or whose facsimile signature or
signatures have been used thereon, had not ceased to be an officer
or officers of the Corporation. The Board of Directors may
designate the Corporation’s transfer agent as an agent of the
Corporation with authority to sign the certificate in the name of
the Corporation certifying the number of shares of stock owned by a
holder of the Corporation’s stock.
(b) Each
certificate representing shares shall state the following upon the
face thereof: the name of the state of the Corporation’s
organization; the name of the person to whom issued; the number and
class of shares and the designation of the series, if any, which
such certificate represents; the par value of each share, if any,
represented by such certificate or a statement that the shares are
without par value. Certificates of stock shall be in such form
consistent with law as shall be prescribed by the Board of
Directors. No certificate shall be issued until the shares
represented thereby are fully paid. In addition to the above, all
certificates evidencing shares of the Corporation’s stock or
other securities issued by the Corporation shall contain such
legend or legends as may from time to time be required by the
Nevada Revised Statutes and/or such other federal, state or local
laws or regulations then in effect.
6.2.
Lost Certificates. A new
certificate or certificates shall 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. The Corporation may require,
as a condition precedent to the issuance of a new certificate or
certificates, the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require or to give
the Corporation a surety bond in such form and amount as it may
direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
6.3.
Transfers.
(a)
Transfers of record of shares of stock of the Corporation shall be
made only upon its books by the holders thereof, in
person,
by attorney or other agent duly
authorized, and upon the surrender of a properly endorsed
certificate or certificates for a like number of
shares.
(b) The
Corporation shall have power to enter into and perform any
agreement with any number of stockholders of any one or more
classes of stock of the Corporation to restrict the transfer of
shares of stock of the Corporation of any one or more classes owned
by such stockholders in any manner not prohibited by the Nevada
Revised Statutes.
6.4.
Fixing Record Dates.
(a) In
order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix, in advance, a
record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the Board
of Directors, and which record date shall not be more than sixty
(60) nor less than ten (10) days before the date of such meeting.
If no record date is fixed by the Board of Directors, the record
date for determining 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
notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the
meeting; provided,
however, that the Board of
Directors may fix a new record date for the adjourned
meeting.
(b)
In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders 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 of
Directors may fix, in advance, a record date, which record date
shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more
than sixty (60) days prior to such action. If no record date is
filed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating
thereto.
6.5.
Registered Stockholders. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of
shares 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 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
Nevada.
ARTICLE VII
OTHER SECURITIES OF THE CORPORATION
7.1.
Execution of Other Securities. All bonds, debentures and other corporate
securities of the Corporation, other than stock certificates
(covered in Section 6.1), may be signed by the Chairman of the
Board of Directors, the Chief Executive Officer or any Vice
President, or such other person as may be authorized by the Board
of Directors;
provided,
however, that where any such
bond, debenture or other corporate security shall be authenticated
by the manual signature, or where permissible facsimile signature,
of a trustee under an indenture pursuant to which such bond,
debenture or other corporate security shall be issued, the
signatures of the persons signing may be the imprinted facsimile of
the signatures of such persons. Interest coupons appertaining to
any such bond, debenture or other corporate security, authenticated
by a trustee as aforesaid, shall be signed by the Treasurer of the
Corporation or such other person as may be authorized by the Board
of Directors, or bear imprinted thereon the facsimile signature of
such person. In case any officer who shall have signed or attested
any bond, debenture or other corporate security, or whose facsimile
signature shall appear thereon or on any such interest coupon,
shall have ceased to be such officer before the bond, debenture or
other corporate security so signed or attested shall have been
delivered, such bond, debenture or other corporate security
nevertheless may be adopted by the Corporation and issued and
delivered as though the person who signed the same or whose
facsimile signature shall have been used thereon had not ceased to
be such officer of the Corporation.
ARTICLE VIII
DIVIDENDS
8.1.
Declaration of Dividends. 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
pursuant to law at any regular or special meeting. Dividends may be
paid in cash, in property or in shares of the capital stock,
subject to the provisions of the Articles of
Incorporation.
8.2.
Dividend 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 their 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 IX
FISCAL YEAR
9.1.
Fiscal Year. The fiscal
year of the Corporation shall be fixed by resolution of the Board
Directors.
ARTICLE X
INDEMNIFICATION
10.1.
Indemnification of Directors, Executive Officers, Other Officers,
Employees and Other Agents.
(a) Directors
and Officers. The
Corporation shall indemnify its directors and officers to the
fullest extent not prohibited by the Nevada Revised Statutes
provided that the Corporation shall not be required to indemnify
any director or officer in connection with any proceeding (or part
thereof) initiated by such person unless (i) such indemnification
is expressly required to be made by law, (ii) the proceeding was
authorized by the Board of Directors of the Corporation, (iii) such
indemnification is provided by the Corporation, in its sole
discretion, pursuant to the powers vested in the Corporation under
the Nevada Revised Statutes or (iv) such indemnification is
required to be made under subsection (d).
(b) Employees
and Other Agents. The
Corporation shall have power to indemnify its employees and other
agents as set forth in the Nevada Revised
Statutes.
(c) Expense. The
Corporation shall advance to any 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 is
or was a director or officer, of the Corporation, or is or was
serving at the request of the Corporation as a director or
executive officer of another corporation, partnership, joint
venture, trust or other enterprise, prior to the final disposition
of the proceeding, promptly following request therefor, all
expenses incurred by any director or officer in connection with
such proceeding upon receipt of an undertaking by or on behalf of
such person to repay said mounts if it should be determined
ultimately that such person is not entitled to be indemnified under
this Bylaw or otherwise.
Notwithstanding
the foregoing, unless otherwise determined pursuant to paragraph
(e) of this Bylaw, no advance shall be made by the Corporation to
an officer of the Corporation (except by reason of the fact that
such officer is or was a director of the Corporation in which event
this paragraph shall not apply) in any action, suit or proceeding,
whether civil, criminal, administrative or investigative, if a
determination is reasonably and promptly made (i) by the Board of
Directors by a majority vote of a quorum consisting of directors
who were not parties to the proceeding, or (ii) if such quorum is
not obtainable, or, even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, that the facts known to the decision-making party at the
time such determination is made demonstrate clearly and
convincingly that such person acted in bad faith or in a manner
that such person did not believe to be in or not opposed to the
best interests of the Corporation.
(d) Enforcement. Without
the necessity of entering into an express contract, all rights to
indemnification and advances to directors and officers under this
Bylaw shall be deemed to be contractual rights and be effective to
the same extent and as if provided for in a contract between the
Corporation and the director or officer. Any right to
indemnification or advances granted by this Bylaw to a director or
officer shall be enforceable by or on behalf of the person holding
such right in any court of competent jurisdiction if (i) the claim
for indemnification or advances is denied, in whole or in part, or
(ii) no disposition of such claim is made within ninety (90) days
of request therefor. The claimant in such enforcement action, if
successful in whole or in part, shall be entitled to be paid also
the expense of prosecuting his claim. In connection with any claim
for indemnification, the Corporation shall be entitled to raise as
a defense to any such action that the claimant has not met the
standard of conduct that make it permissible under the Nevada
Revised Statutes for the Corporation to indemnify the claimant for
the amount claimed. In connection with any claim by an officer of
the Corporation (except in any action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the
fact that such officer is or was a director of the Corporation) for
advances, the Corporation shall be entitled to raise a defense as
to any such action clear and convincing evidence that such person
acted in bad faith or in a manner that such person did not believe
to be in or not opposed in the best interests of the Corporation,
or with respect to any criminal action or proceeding that such
person acted without reasonable cause to believe that his conduct
was lawful. Neither the failure of the Corporation (including its
Board of Directors, independent legal counsel or its stockholders)
to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the
circumstances because he has met the applicable standard of conduct
set forth in the Nevada Revised Statutes, nor an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel or its stockholders) that the claimant
has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that claimant has not met the
applicable standard of conduct. In any suit brought by a director
or officer to enforce a right to indemnification or to an
advancement of expenses hereunder, the burden of proving that the
director or officer is not entitled to be indemnified, or to such
advancement of expenses, under this Article X or otherwise shall be
on the Corporation.
(e) Non-Exclusivity
of Rights. The rights
conferred on any person by this Bylaw shall not be exclusive of any
other right which such person may have or hereafter acquire under
any statute, provision of the Articles of Incorporation, Bylaws,
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to
action in another capacity while holding office. The Corporation is
specifically authorized to enter into individual contracts with any
or all of its directors, officers, employees or agents respecting
indemnification and advances, to the fullest extent not prohibited
by the Nevada Revised Statutes.
(f) Survival
of Rights. The rights
conferred on any person by this Bylaw shall continue as to a person
who has ceased to be a director, officer, employee or other agent
and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(g) Insurance. To
the fullest extent permitted by the Nevada Revised Statutes, the
Corporation, upon approval by the Board of Directors, may purchase
insurance on behalf of any person required or permitted to be
indemnified pursuant to this Bylaw.
(h) Amendments. Any
repeal or modification of this Bylaw shall only be prospective and
shall not affect the rights under this Bylaw in effect at the time
of the alleged occurrence of any action or omission to act that is
the cause of any proceeding against any agent of the
Corporation.
(i) Saving
Clause. If this Bylaw or
any portion hereof shall be invalidated on any ground by any court
of competent jurisdiction, then the Corporation shall nevertheless
indemnify each director and officer to the full extent not
prohibited by any applicable portion of this Bylaw that shall not
have been invalidated, or by any other applicable
law.
(j) Certain
Definitions. For the
purposes of this Bylaw, the following definitions shall
apply:
(i) The
term “proceeding” shall be broadly construed and shall
include, without limitation, the investigation, preparation,
prosecution, defense, settlement, arbitration and appeal of, and
the giving of testimony in, any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative
or investigative.
(ii) The
term “expenses” shall be broadly construed and shall
include, without limitation, court costs, attorneys’ fees,
witness fees, fines, amounts paid in settlement or judgment and any
other costs and expenses of any nature or kind incurred in
connection with any proceeding.
(iii) The
term 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, and
employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as a
director, officer, employee or agent or another corporation,
partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Bylaw with
respect to the resulting or surviving corporation as he would have
with respect to such constituent corporation if its separate
existence had continued.
(iv) References
to a “director,” “executive officer,”
“officer,” “employee” or
“agent” of the Corporation shall include, without
limitation, situations where such person is serving at the request
of the Corporation as, respectively, a director, executive officer,
officer, employee, trustee or agent of another corporation,
partnership, joint venture, trust or other
enterprise.
(v) References
to “other enterprises” shall include employee benefit
plans; references to “fines” shall include any excise
taxes assessed on a person with respect to an 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 he 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
Bylaw.
ARTICLE XI
NOTICES
11.1.
Notices.
(a) Notice
to Stockholders. Whenever, under any provisions of these Bylaws,
notice is required to be given to any stockholder, it shall be
given in writing, timely and duly deposited in the United States
mail, postage prepaid, and addressed to his last known post office
address as shown by the stock record of the Corporation or its
transfer agent.
(b) Notice
to Directors. Any notice
required to be given to any director may be given by any method
stated in Section 3.6(e). Notice sent through registered or
certified mail, return receipt requested, shall be sent to such
address as the director shall have filed in writing with the
Secretary, or, in the absence of such filing, to the last known
post office address of such director. Notice may be
delivered by electronic transmission if: (i) consented to by the
recipient, and (ii) the electronic transmission contains or is
accompanied by information from which the recipient can determine
the date of the transmission (such as, for example, electronic mail
or facsimile). Any consent to receive notice by electronic
transmission may be revoked by the person who consented by written
or electronic notice to the person to whom the consent was
delivered. Any such consent is deemed revoked if: (i) the person is
unable to receive two consecutive electronic transmissions given by
the Company in accordance with such consent; and (ii) such
inability becomes known to the Secretary of the Company or other
person responsible for the giving of notice. The inadvertent
failure to treat any such inability as a revocation does not
invalidate any meeting or other action.
(c) Affidavit
of Mailing. An affidavit
of mailing, executed by a duly authorized and competent employee of
the Corporation or an agent of the Corporation or its transfer
agent appointed with respect to the class of stock affected,
specifying the name and address or the names and addresses of the
stockholder or stockholders, or director or directors, to whom any
such notice or notices was or were given, and the time and method
of giving the same, shall in the absence of fraud, be prima facie
evidence of the facts therein contained.
(d) Time
Notices Deemed Given. Notice shall be deemed effective: (i) if
personally delivered, when given directly to the recipient or when
left at the residence or usual place of business of the recipient;
(ii) if sent by registered or certified mail, return receipt
requested, the date shown on the return receipt signed by or on
behalf of the addressee; (iii) if given by electronic transmission,
when (A) it enters an information processing system that the
recipient has designated or uses for the purpose of receiving
electronic transmissions of the type sent, and (B) it is in a form
ordinarily capable of being processed by that system. Consistent
with the foregoing and by way of example, notice by electronic
transmission shall be deemed effective: (i) if given by facsimile,
when directed to a number at which the recipient has consented to
receive notice; and (ii) if given by electronic mail, when directed
to an electronic mail address at which the recipient has consented
to receive notice. An electronic transmission shall be deemed
received under this Section 11.1(d) even if no natural person
is aware of its receipt. In the absence of fraud, an affidavit of
the Secretary of the Company that the notice has been given by a
form of electronic transmission is prima facie evidence of the
facts stated in the affidavit.
(e) Methods
of Notice. It shall not
be necessary that the same method of giving notice be employed in
respect of all directors, but one permissible method may be
employed in respect of any one or more, and any other permissible
method or methods may be employed in respect of any other or
others.
(f) Failure
to Receive Notice. The
period or limitation of time within which any stockholder may
exercise any option or right, or enjoy any privilege or benefit, or
be required to act, or within which any director may exercise any
power or right, or enjoy any privilege, pursuant to any notice sent
him in the manner above provided, shall not be affected or extended
in any manner by the failure of such stockholder or such director
to receive such notice.
(g) Notice
to Person with Whom Communication Is
Unlawful. Whenever notice
is required to be given, under any provision of law or of the
Articles of Incorporation or Bylaws of the Corporation, to any
person with whom communication is unlawful, the giving of such
notice to such person shall not be required and there shall be no
duty to apply to any governmental authority or agency for a license
or permit to give such notice to such person. Any action or meeting
which shall be taken or held without notice to any such person with
whom communication is unlawful shall have the same force and effect
as if such notice had been duly given. In the event that the action
taken by the Corporation is such as to require the filing of a
certificate under any provision of the Nevada Revised Statutes, the
certificate shall state, if such is the fact and if notice is
required, that notice was given to all persons entitled to receive
notice except such persons with whom communication is
unlawful.
(h) Notice
to Person with Undeliverable Address. Whenever notice is required to be given, under any
provision of law or the Articles of Incorporation or Bylaws of the
Corporation, to any stockholder to whom (i) notice of two
consecutive annual meetings, and all notices of meetings or of the
taking of action by written consent without a meeting to such
person during the period between such two consecutive annual
meetings, or (ii) all, and at least two, payments (if sent by first
class mail) of dividends or interest on securities during a
twelve-month period, have been mailed addressed to such person at
his address as shown on the records of the Corporation and have
been returned undeliverable, the giving of such notice to such
person shall not be required. Any action or meeting which shall be
taken or held without notice to such person shall have the same
force and effect as if such notice had been duly given. If any such
person shall deliver to the Corporation a written notice setting
forth his then current address, the requirement that notice be
given to such person shall be reinstated. In the event that the
action taken by the Corporation is such as to require the filing of
a certificate under any provision of the Nevada Revised Statutes,
the certificate need not state that notice was not given to persons
to whom notice was not required to be given pursuant to this
paragraph.
(i) Electronic
Transmission. For
purposes of these Bylaws, “electronic
transmission”
means any form or process of
communication not directly involving the physical transfer of paper
or another tangible medium which: (i) is suitable for the
retention, retrieval and reproduction of information by the
recipient; and (ii) is retrievable and reproducible in paper form
by the recipient through an automated process used in conventional
commercial practice. The term ‘electronic transmission’
shall include, without limitation, facsimile, text messaging and
electronic mail.
ARTICLE XII
AMENDMENTS
12.1.
Amendments. The Board of
Directors shall have the power to adopt, amend, amend and restate,
or repeal these Bylaws, in part or in full, to the full extent,
unless otherwise prohibited by the Corporation’s Articles of
Incorporation or the Nevada Revised Statutes;
provided,
however, that,
in accordance with Section 3.1, approval by a majority of the
outstanding shares of the Corporation’s voting stock is
required to change the Corporation’s fixed number of
directors.
ARTICLE XIII
INAPPLICABILITY OF NEVADA REVISED
STATUTES
SECTIONS 78.378 TO 78.3793,
INCLUSIVE
13.1. Inapplicability of Nevada
Revised Statutes Sections 78.378 to 78.3793,
Inclusive. The provisions
of Nevada Revised Statutes Sections 78.378 to 78.3793, inclusive,
shall not apply to the Corporation or to the acquisition of a
controlling interest by existing or future
stockholders.
ARTICLE XIV
FORUM FOR LITIGATION
14.1. Exclusive Forum for Certain
Litigation. 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 or officer or other employee of
the Corporation to the Corporation or the Corporation’s
stockholders, (iii) any action asserting a claim against the
Corporation or any director or officer or other employee of the
Corporation arising pursuant to any provision of the Nevada Revised
Statutes or the Corporation’s Articles of Incorporation or
these Bylaws (in each case, as they may be amended from time to
time), or (iv) any action asserting a claim against the Corporation
or any director or officer or other employee of the Corporation
governed by the internal affairs doctrine shall be a state court
located within the State of Nevada (or, if no state court located
within the State of Nevada has jurisdiction, the federal district
court for the District of Nevada).