Exhibit 3.2
FIRST AMENDED AND RESTATED
BYLAWS OF
NUZEE INC.
I. SHAREHOLDER'S MEETING.
.01 AnnualMeetings.
The annualmeeting of the shareholders of thisCorporation, for the purpose of election of Directors and for such other business asmay come before it, shall be held at the registered office of the Corporation, or such other places, either within or without the State of Nevada, asmay be designated by the notice of themeeting, within three months after the calendar year ends, commencing in 2014.
.02Special Meeting.
Specialmeetings of the shareholders of this Corporationmay be called at any time by the holders of ten percent (10%) of the voting shares of the Corporation, or by the President, or by the Board of Directors or amajority thereof. No business shall be transacted at any specialmeeting ofshareholders except as is specified in the notice calling for saidmeeting. The Board of Directorsmay designate any place,either within or without the State of Nevada, as the place of any specialmeeting called by the president or the Board of Directors, and special meetings called at the request of shareholders shall be held at such place in theState of Nevada, asmay be determined by the Board of Directors and placed in the notice of suchmeeting.
.03 Notice of Meeting.
Written notice of annual or specialmeetings of shareholders stating the place, day, and hour of themeeting and, in the case of a specialmeeting, the purpose or purposes for which themeeting is called shall be given by the secretaryor persons authorized to call themeeting to each shareholder of record entitled tovote atthemeeting. Such notice shall begiven not less than ten (10) normore than fifty (50) days prior to the dateof themeeting, and such notice shall be deemed to be delivered when depositedin the United Statesmail addressed to the shareholderat his/her address as it appears on the stock transfer books of the Corporation.
.04 Waiver of Notice.
Notice of the time, place, and purpose of anymeetingmay be waived in writing and will be waived by any shareholder by his/her attendance thereat in person or by proxy. Anyshareholder so waiving shall be bound by the proceedings of any suchmeeting in all respects as if due notice thereof had been given.
.05 Quorum and Adjourned Meetings.
Amajority of the outstanding shares of the Corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at ameeting of shareholders. A majority of the shares represented at ameeting, even if less than a quorum,may adjourn themeeting fromtime to time without further notice. At such adjournedmeeting at which a quorum shall be present or represented, any businessmay be transacted whichmight have been transacted at themeeting as originally notified. The shareholders present at a duly organizedmeetingmay continue to transact business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum.
.06 Proxies.
At allmeetings of shareholders, a shareholder may vote by proxy executed in writing by the shareholder or by his/her duly authorized attorney in fact. Such proxy shall be filed with the secretary of the Corporation before or at the time of themeeting. No proxy shall be valid after eleven(11) months from the date of its execution, unless otherwise provided in the proxy.
.07 Voting of Shares.
Except asotherwise provided in the Articles of Incorporation or in these Bylaws, every shareholder of record shall have the right at every shareholder'smeeting to one (1) vote for everyshare standing in his/her name on the books of the Corporation, and the affirmative vote of amajority of the shares represented at ameeting and entitled tovote thereat shall be necessary for the adoption of amotion orfor the determination of all questions and business which shall come beforethemeeting.
II. DIRECTORS.
.01 General Powers.
The business and affairs of the Corporation shall bemanaged by its Board of Directors.
.02 Number, Tenure and Qualifications.
The number of Directors of the Corporation shallbe not less than one nor more than thirteen. Each Director shall holdoffice until the next annualmeeting ofshareholders and until his/her successor shall have been elected and qualified. Directors need not be residents of the State of Nevada or shareholdersof the Corporation.
.03 Election.
The Directors shall be elected by the shareholders at their annualmeeting each year; and if, for any cause the Directors shall not have been elected at an annualmeeting, theymay be elected at a specialmeeting of shareholders called forthat purpose in themanner provided by these Bylaws.
2
.04 Vacancies.
In case of any vacancy inthe Boardof Directors, the remaining Directors, whether constituting a quorumor not,may elect a successor to hold office for the unexpiredportion of the terms of the Directors whose place shall be vacant,and untilhis/her successor shall have beenduly elected and qualified. Further, theremaining Directorsmayfill any empty seats on the Board of Directors even if the empty seats have never been occupied.
.05 Resignation.
Any Directormay resign at any time by delivering written notice tothe secretary of the
Corporation.
.06 Meetings.
At any annual, special or regularmeeting oftheBoard of Directors, any businessmay be transacted, and the Boardmay exercise all of its powers. Any such annual, special or regularmeeting of the Board of Directors of the Corporationmay be held outside of the State of Nevada, and anymember ormembers of the Board of Directors of the Corporationmay participate in any suchmeeting bymeans of a conference telephone or similar communications equipment bymeans of which all persons participating in themeeting can hear each other at the same time; the participation by suchmeans shall constitute presence in person at suchmeeting.
A. Annual Meeting of Directors.
Annualmeetings of the Board of Directors shall be held immediately after the annual shareholders' meeting or at such time and place asmay be determined by the Directors. No notice of the annualmeeting of the Board of Directors shall benecessary.
B.Special Meetings.
Specialmeetings of the Directors shall becalled at any time and place upon the callof the president or any Director. Notice ofthe time and place ofeach specialmeeting shall be given by the secretary, or the personscalling themeeting, bymail, radio, telegram,
or by personal communication by telephone or otherwise at least one (1) day in advance of the time of themeeting. The purpose of themeeting need not be given in the notice. Notice of any specialmeetingmay be waived inwritingorby telegram (either before or after suchmeeting) and will be waived by any Director in attendance atsuchmeeting.
C. Regular Meetings of Directors.
Regularmeetings of the Board of Directors shall be held at such place andon such day and hour as shall fromtime to time be fixed by resolution of the Board of Directors. No notice of regularmeetings of the Board of Directors shall be necessary.
3
.07 Quorum and Voting.
Amajority of the Directors presently in office shall constitute a quorumfor all purposes, but a lesser numbermay adjourn anymeeting, and themeetingmay be held as adjournedwithout further notice. At eachmeeting of the Board atwhich a quorumis present, the act of amajority of the Directors present at themeeting shallbe the act of the Board of Directors. The Directors present at a duly organizedmeetingmay continue to transact business until adjournment, notwithstanding the withdrawal of enough Directors toleave less than a quorum.
.08 Compensation.
By resolution of the Board of Directors, the Directorsmay be paid their expenses, if any, of attendance at eachmeeting of the Board ofDirectors andmay be paid a fixed sumfor attendance at eachmeeting of the Board of Directors or astated salary as Director. No such payment shall preclude any Director fromserving the Corporation in any other capacity and receivingcompensation therefor.
.09 Presumption of Assent.
A Director of the Corporation who is present at ameeting of the Board of Directors at which action on any corporatematter is taken shall be presumed to have assented to the action taken unless his/her dissent shall be entered in theminutes of themeeting or unless he/she shall file his/her written dissent to suchaction with the person acting as the secretary of themeeting before the adjournment thereof or shall forward such dissent by registeredmail to the secretary of the Corporation immediately after the adjournment of themeeting. Such right to dissent shall not apply to a Director whovoted in favor of such action.
.10 Executive and Other Committees.
The Board of Directors, by resolution adopted by amajority of the full Board of Directors,may designate fromamong itsmembers an executivecommittee and one of more other committees, each of which, to the extent provided in such resolution, shall have andmay exercise all the authority of the Board of Directors, but no such committee shall have the authority ofthe Board of Directors, in reference to amending the Articles of Incorporation, adoption a plan of merger or consolidation, recommending to the shareholders the sale, lease, exchange, or other disposition of all of substantially all the property and assets of the dissolution of the
Corporation or a revocation thereof, designation of any such committee and the delegation thereto of authority shall not operate to relieve anymember of the Board of Directors of any responsibility imposed by law.
.11 Chairman of Board of Directors.
The Board of Directorsmay, in itsdiscretion, elect a chairman ofthe Board of Directors from itsmembers; and, if a chairman has been elected, he/she shall, when present, preside at allmeetings of the Board of Directors and the shareholders and shall have such other powers as the Board may prescribe.
4
.12 Removal.
Directors may be removed fromoffice with orwithout cause by a vote ofshareholders holding amajorityof the shares entitled tovote at an election of Directors.
III. OFFICERS.
.01 Officers Designated.
The Officers of the Corporation shall be a president, one ormore vice presidents (the number thereof to be determined by the Board of Directors), asecretary and a treasurer, eachof whom shall be elected by theBoard of Directors. Suchother Officers and assistant officers asmay be deemed necessarymay be elected or appointed by the Board of Directors. Any Officermay be held by the same person, except that in the event that the Corporation shall havemore than one director, the offices of president and secretary shall be held by different persons.
.02 Election, Qualification and Term of Office.
Each of the Officers shall be elected by the Board of Directors. None of said Officers except the president need be a Director, but a vice president who is not a Director cannot succeed to orfill the office ofpresident. The Officers shallbe elected by the Board ofDirectors. Except as hereinafterprovide,each of said Officers shall hold officefrom the dateof his/herelection until the next annualmeeting of the Board of Directors and until his/her successor shall have been duly elected and qualified.
.03 Powers and Duties.
The powers and duties of the respective corporate Officers shall be as follows:
A. President.
The president shall be the chief executive Officer of the Corporation and, subject to the direction and control of the Board of Directors,shall have general charge and supervision over its property, business, and affairs. He/she shall, unless a Chairman of the Board of Directorshas been elected andis present, preside atmeetings of the shareholders and the Board of Directors.
B. Vice President.
In the absence of the presidentor his/her inability to act, the seniorvicepresident shall act inhis place and steadand shall have all the powers and authority of the president, exceptas limited by resolution ofthe Board of Directors.
C. Secretary.
The secretary shall:
5
1. Keep theminutes of the shareholder's and of the Board of Directorsmeetings in one ormore books provided for that purpose;
2. See that all notices areduly given in accordance with theprovisions of these Bylaws or as required by law;
3. Be custodian of the corporate records and of the seal of the Corporation and affix the seal of the Corporation to all documents asmay be required;
4. Keep a register of the post office address of each shareholder which shallbefurnished to the secretary by such shareholder;
5. Sign with the president, or a vicepresident, certificates for shares of the Corporation, the issuance of which shall have been authorized by resolution ofthe Board of Directors;
6. Have general charge of the stock transfer books ofthe corporation;
and,
7. In general performall duties incident to the office of secretary and such other duties as from time to time may be assigned to him/her by the president or by theBoard of Directors.
D. Treasurer.
Subject to the direction and control of the Board of Directors, the treasurer shall have the custody, control and disposition of the funds and securities of the Corporation and shall account for the same; and, at the expiration of his/her term of office, he/she shall turn over to his/her successor all property of the Corporation in his/her possession.
E. Assistant Secretaries and Assistant Treasurers.
The assistant secretaries,when authorizedby the Board of Directors,may sign with the president or a vicepresident certificates for sharesof theCorporation the issuance of which shall have been authorized by a resolution of the Board of Directors. The assistant treasurers shall, respectively, if required by the Board of Directors, give bondsfor thefaithful discharge oftheir duties in such sums and with such sureties as the Board of Directors shall determine. The assistant secretaries and assistant treasurers, in general, shall performsuch duties as shallbe assigned to them by the secretary or the treasurer, respectively,or by the president or the Board of Directors.
.04 Removal.
The Board of Directors shall have the right to remove any Officer whenever in its judgment the best interest of the Corporation willbe served thereby.
6
.05 Vacancies.
The Board of Directorsshall fill any officewhich becomes vacant with asuccessor who shall hold officefor the unexpired termand untilhis/her successor shallhavebeen dulyelected and qualified.
.06 Salaries.
The salaries of all Officers ofthe Corporation shall be fixedby the Board of Directors.
IV. SHARE CERTIFICATES
.01 Form and Execution of Certificates.
Certificatesfor shares ofthe Corporation shall bein suchform as is consistent with the provisions of the Corporation laws of the State of Nevada. They shall be signed by the president and by the secretary, and the seal ofthe Corporation shall be affixed thereto. Certificatesmay be issuedfor fractional shares.
.02 Transfers.
Sharesmay be transferred by delivery of the certificates therefor, accompanied either by an assignment in writing on the back ofthe certificates or by awritten power of attorney to assign and transfer the same signed by the record holder of the certificate. Except as otherwise specifically provided in these Bylaws, no shares shall be transferred on the books of the Corporationuntil the outstanding certificate therefor has beensurrendered to the Corporation.
.03 Loss or Destruction of Certificates.
In case of loss or destruction ofany certificate of shares, anothermay be issued in its place upon proof of such loss or destruction and upon the giving of a satisfactory bond of indemnity to the Corporation. A new certificatemay be issued without requiring any bond, when in the judgment of the Board of Directors it is proper to do so.
V. BOOKS AND RECORDS.
.01 Books of Accounts, Minutes and Share Register.
The Corporation shall keep complete booksand records of accounts and minutes of the proceedings of the Board of Directorsand shareholders and shall keep atits registered office, principal place of business, or atthe office of its transfer agent or registrar a share register giving the names of the shareholders in alphabetical order and showing their respective addresses and the number of shares held by each.
7
.02 Copies of Resolutions.
Any person dealing with the Corporationmay rely upon a copy of any of the records of the proceedings, resolutions, or votes of the Board ofDirectors or shareholders, when certified by the president or secretary.
VI. CORPORATE SEAL.
The Corporation is not required to have a seal.
VII. LOANS.
No loans shall bemade by the Corporation to itsOfficers or Directors
VIII. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
.01 Indemnification.
The Corporation shall indemnify any person who was or is a party or is threatened to bemade a party to any proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of theCorporation) by reason of the factthat such person is or was a Director, Trustee, Officer, employee or agent ofthe Corporation, or is or was serving at the request of the Corporation as a Director, Trustee, Officer, employee or agent of another corporation,partnership, joint venture, trust or other enterprise, against expenses (including attorneys'fees), judgment, 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 amanner 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 conductwas unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good
faith and in amanner 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 proceeding, had reasonable cause to believe that such person's conduct was unlawful.
.02 Derivative Action
The Corporation shall indemnify any person who was or is a party or is threatened to bemade a partyto any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in the Corporation's favor by reason of the fact that such person is or was a Director, Trustee, Officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as aDirector, Trustee, Officer, employee or agent of another corporation, partnership,joint venture, trust or otherenterprise, against expenses (including attorney's fees) and amount paid in settlement 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 amanner such person reasonably believed to be in or not opposed to
8
the best interests of the Corporation, and, with respect to amounts paid in settlement, the settlement ofthe suitor action was in the best interests ofthe Corporation; provided, however, that no indemnification shallbemade in respect of any claim, issue ormatter as to which such person shall have been adjudged to be liable for gross negligence or willfulmisconduct in the performance of such person's duty to the Corporation unless and only to the extent that, the court in which such action or suitwas brought shall determine upon application that, despite circumstances of the case, such person is fairlyand reasonably entitled to indemnity for such expenses as such court shall deemproper. Thetermination of any actionor suit by judgment or settlement shall not, of itself, create a presumption that the person did not act in good faith and in amanner which such person reasonably believed to be in or not opposed to the best interests of the Corporation.
.03 Successful Defense.
To the extent that a Director, Trustee, Officer, employee orAgent of the Corporation has been successful on themerits or otherwise, in whole or in part in defense of any action, suit or proceeding referred to inParagraphs .01 and .02above, or in defense of any claim, issue ormatter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by suchperson in connection therewith.
.04 Authorization.
Any indemnification under Paragraphs .01 and .02 above (unless ordered by a court) shall bemade by the Corporation only as authorized inthe specific case upon a determination that indemnification of the Director, Trustee,Officer, employee or agent is proper in the circumstances because such personhasmet the applicable standard of conduct set forth in Paragraphs .01 and .02 above. Such determination shall be made (a) by the Board of Directors of the Corporation by amajority vote of a quorumconsisting of Directors who were not parties to such action, suit orproceeding,or (b) is sucha quorumis not obtainable, by amajority vote of the Directors who were not parties to such action, suit or proceeding, or (c) by independent legal counsel (selected by one ormore of theDirectors, whether or nota quorum and whether or not disinterested) in a written opinion, or (d) by the Shareholders. Anyonemaking such a determination under this Paragraph .04may determine that a person hasmet the standards therein set forth as to some claims, issues ormatters but not as to others, andmay reasonably prorate amounts to be paid as indemnification.
.05 Advances.
Expenses incurred in defending civil or criminal action, suitor proceeding shallbe paidby the Corporation, at any time or fromtime to time in advance of the final disposition of such action, suit or proceeding as authorized in themanner provided in Paragraph .04 above upon receipt of an undertaking by or on behalf of the Director,Trustee, Officer, employee or agent to repay such amount unless it shallultimately be by theCorporation is authorized in thisSection.
9
.06 Nonexclusivity.
The indemnificationprovided in thisSection shall not be deemed exclusive of any other rights to which those indemnifiedmay beentitled under any law, bylaw, agreement, vote of shareholders or disinterested Directors or otherwise, both as toaction in such person's official capacity andas to action in another capacity while holding suchoffice, and shall continue as to a person who has ceased to be a Director, Trustee, Officer, employee or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person.
.07 Insurance.
The Corporation shall have the power to purchase andmaintain insurance on behalf of any person who is or was a Director,Trustee, Officer, employee or agent of the Corporation, or is or was serving at the request oftheCorporation as a Director, Trustee, Officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any
liability assessed against such person in any such capacity or arising out of such person's status as such, whether or not the corporation would have the power to indemnify such person against such liability.
.08 "Corporation" Defined.
For purposes of this Section, references to the "Corporation" shall include, in addition to the Corporation,an constituent corporation (including any constituent ofa constituent) absorbed in a consolidation ormerger which, if its separate existence had continued, would have had the power and authority to indemnify its Directors,Trustees, Officers, employees or agents, so that any person who is or was a Director, Trustee, Officer, employee or agent ofsuch constituent corporation or of any entity amajority ofthe voting stock of which is owned by such constituent corporation or is orwas serving at the request of such constituent corporation as a
Director, Trustee, Officer, employee or agent ofthe corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisionsof this Section with respect to the resultingor surviving Corporation as such person would have with respect to
such constituent corporation if itsseparate existence had continued.
IX. AMENDMENT OF BYLAWS.
.01 By the Shareholders.
These Bylawsmay be amended, altered, or repealed at any regular or specialmeeting of the shareholders if notice of the proposed alteration or amendment is contained in the notice of themeeting.
.02 By the Board of Directors.
These Bylawsmay be amended, altered, or repealedby the affirmative vote of amajority of the entire Board of Directors at any regular or specialmeeting of the Board.
10
X. FISCAL YEAR.
The fiscalyear of theCorporationshall be set by resolution of the Board of Directors.
XI. RULES OFORDER.
The rules contained in themost recent edition ofRobert's Rules or Order, Newly Revised, shall govern allmeetings of shareholders andDirectors where those rulesare not inconsistent with the Articlesof Incorporation, Bylaws, or special rules or order of the Corporation.
XII. REIMBURSEMENTOFDISALLOWED EXPENSES.
If any salary, payment, reimbursement, employee fringe benefit, expense allowance payment, or other expense incurred by the Corporation forthe benefit of an employee is disallowed in whole or in part as a deductible expense of the Corporation for Federal Income Tax purposes, the employee shall reimburse the Corporation, upon notice and demand, tothe full extent of the disallowance. This
legally enforceable obligation is in accordancewith theprovisions of Revenue Ruling 69-115, 1969-1
C.B. 50, and is for the purpose of entitling such employee to a business expense deduction for the taxable year in which the repayment ismade to theCorporation. In thismanner, the Corporation shall be protected fromhaving to bear the entire burden of disallowed expense items.
11
12
