AMENDED AND RESTATED BYLAWS
OF
RCM TECHNOLOGIES, INC.
ARTICLE I
Offices and Fiscal Year
Section 1.01. Registered Office. The Registered Office of the Company shall
be at Bank of America Plaza, Suite 800, 50 West Liberty Street, Reno, Nevada
89501 until otherwise established by the board of directors and a record of such
change is filed with the Department of State in the manner provided by law.
Section 1.02. Other Offices. The Company may have offices at such other
places within or without the State of Nevada as the board of directors may from
time to time appoint or the business of the Company may require.
Section 1.03. Fiscal Year. The fiscal year of the Company shall begin on
the 1st day of -----------
November in each year.
ARTICLE II
Notice - Waivers - Meetings Generally
Section 2.01. Manner of Giving Notice.
(a) General Rule. Whenever written notice is required to be given to any
person under the provisions of the Articles of Incorporation or these Bylaws, it
may be given to the person either personally or by sending a copy thereof by
first class or express mail, postage prepaid, or by telegram (with messenger
service specified), telex or TWX (with answer back received), courier service,
(charges prepaid), or by telecopier, to the address (or to the telex, TWX,
telecopier or telephone number) of the person appearing on the records of the
Company or, in the case of directors, supplied by the director to the Company
for the purpose of notice. If the notice is sent by mail, telegraph or courier
service, it shall be deemed to have been given to the person entitled thereto
when deposited in the United States mail or with a telegraph office or courier
service for delivery to that person or, in the case of telex or TWX, when
dispatched or, in the case of telecopier, when received. A notice of meeting
shall specify the place, day and hour of the meeting and any other information
required by any other provision of the Articles of Incorporation or these
Bylaws. Notwithstanding the foregoing, notice to the shareholders of every
meeting of shareholders shall be personally delivered or mailed postage prepaid.
(b) Adjourned Shareholder Meetings. When a meeting of
shareholders is adjourned it shall not be necessary to give any notice of the
adjourned meeting or of the business to be transacted at an adjourned meeting,
other than by announcement at the meeting at which the adjournment is taken,
unless the board of directors fixes a new record date for the adjourned meeting.
Section 2.02. Notice of Meetings of Board of Directors. Notice of a
regular meeting of the board of directors need not be given. Notice of every
special meeting of the board of directors shall be given to each director by
telephone or in writing at least 24 hours (in the case of notice by telephone,
telex, TWX or telecopier) or 48 hours (in the case of notice by telegraph,
courier service or express mail) or five days (in the case of notice by first
class mail) before the time at which the meeting is to be held. Every such
notice shall state the time and place of the meeting. Neither the business to be
transacted at, nor the purpose of any regular or special meeting of the board of
directors need be specified in a notice of the meeting.
Section 2.03. Notice of Meeting of Shareholders.
(a) General Rule. Written notice of every meeting of
shareholders shall be given and signed by, or at the direction of, the Secretary
to each shareholder of record entitled to vote at the meeting at least ten days
and not more than 60 days prior to the day named for a meeting. If the Secretary
neglects or refuses to give notice of a meeting, the person or persons calling
the meeting may do so. In the case of a special meeting of shareholders, the
notice shall specify the purpose of the meeting and the general nature of the
business to be transacted.
Section 2.04. Waiver of Notice.
(a) Written Waiver. Whenever any written notice is required to
be given under the provisions of the Articles of Incorporation or these Bylaws,
a waiver thereof in writing signed by the person or persons entitled to the
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of the notice. Except as otherwise required by this
subsection, neither the business to be transacted at, nor the purpose of a
meeting need be specified in the waiver of notice of the meeting. In the case of
a special meeting of shareholders the waiver of notice shall specify the general
nature of the business to be transacted.
(b) Waiver by Attendance. Attendance of a person at any
meeting shall constitute a waiver of notice of the meeting except where a person
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting was not lawfully
called or convened.
Section 2.05. Modification of Proposal Contained in Notice. Whenever the
language of a proposed resolution is included in a written notice of a meeting
required to be given under the provisions of the Articles of Incorporation or
these Bylaws, the meeting considering the resolution
may without further notice adopt it with such clarifying or other amendments as
do not enlarge its original purpose.
Section 2.06. Exception to Requirement of Notice.
(a) General Rule. Whenever any notice or communication is
required to be given to any person under the provisions of the Articles of
Incorporation or these Bylaws or by the terms of any agreement or other
instrument or as a condition precedent to taking any corporate action and
communication with that person is then unlawful, the giving of the notice or
communication to that person shall not be required.
(b) Shareholders Without Forwarding Addresses. Notice or other
communications shall not be sent to any shareholders with whom the Company has
been unable to communicate for more than 24 consecutive months because
communications to the shareholder are returned unclaimed or the shareholder has
otherwise failed to provide the Company with a current address. Whenever the
shareholder provides the Company with a current address, the Company shall
commence sending notices and other communications to the shareholder in the same
manner as to other shareholders.
Section 2.07. Use of Conference Telephone and Similar Equipment. Any
director may participate in any meeting of the board of directors, and the board
of directors may provide by resolution with respect to a specific meeting or
with respect to a class of meetings that one or more persons may participate in
a meeting of the shareholders of the Company, by means of conference telephone
or similar communications equipment by means of which all persons participating
in the meeting can hear each other. Participation in a meeting pursuant to this
Section shall constitute presence in person at the meeting.
ARTICLE III
Shareholders
Section 3.01. Place of Meeting. All meetings of the shareholders of the
Company shall be held at the Registered Office of the Company unless another
place is designated by the board of directors in the notice of the meeting.
Section 3.02. Annual Meeting. The board of directors may fix and
designate the date and time of the annual meeting of shareholders, notice of
which shall be given not less than ten days nor more than 60 days prior to the
date named for the meeting.
Section 3.03. Special Meetings.
(a) Call of Special Meetings. Special meetings of the shareholders may be
called at any time:
(1) by the board of directors; or
(2) unless otherwise provided in the Articles of
Incorporation, by shareholders entitled to cast at least eighty percent
of the votes that all shareholders are entitled to cast at the
particular meeting.
(b) Fixing of Time for Meeting. At any time, upon the written
request of any person who has called a special meeting, it shall be the duty of
the Secretary to fix the time of the meeting which shall be held not more than
60 days after the receipt of the request. If the Secretary neglects or refuses
to fix the time of the meeting, the person or persons calling the meeting may do
so.
Section 3.04. Quorum and Adjournment.
(a) General Rule. A meeting of shareholders of the Company
duly called shall not be organized for the transaction of business unless a
quorum is present. The presence of shareholders entitled to cast a majority of
the votes all shareholders are entitled to cast on a particular matter to be
acted upon at the meeting shall constitute a quorum for the purposes of
consideration and action on the matter.
(b) Withdrawal of a Quorum. The shareholders present at a duly
organized meeting can continue to do business until adjournment notwithstanding
the withdrawal of enough shareholders to leave less than a quorum.
(c) Adjournments Generally. Any regular or special meeting of
the shareholders, including one at which directors are to be elected and one
which cannot be organized because a quorum has not attended, may be adjourned
for such period and to such place as the shareholders present and entitled to
vote shall direct.
(d) Electing Directors at Adjourned Meeting. Those
shareholders entitled to vote who attend a meeting called for the election of
directors that has been previously adjourned for lack of a quorum, although less
than a quorum as fixed in this section, shall nevertheless constitute a quorum
for the purpose of electing directors.
(e) Other Action in Absence of Quorum. Those shareholders
entitled to vote who attend a meeting of shareholders that has been previously
adjourned for one or more periods aggregating at least fifteen days because of
an absence of a quorum, although less than a quorum as fixed in this Section,
shall nevertheless constitute a quorum for the purpose of acting upon any matter
set forth in the notice of the meeting if the notice states that those
shareholders who attend the adjourned meeting shall nevertheless constitute a
quorum for the purpose of acting upon the matter.
Section 3.05. Action by Shareholders. Except as otherwise provided in
the Articles of Incorporation or these Bylaws, whenever any corporate action is
to be taken by vote of the shareholders of the Company, it shall be authorized
by a majority of the votes cast at a duly organized meeting of shareholders by
the holders of shares entitled to vote thereon.
Section 3.06. Organization. At every meeting of the shareholders, the
Chairman of the Board, if there be one, or in the case of vacancy in office or
absence of the Chairman of the Board, one of the following officers present in
the order stated: the Vice Chairman of the Board, if there be one, the
President, the Vice Presidents in their order of rank and seniority, or a person
chosen by vote of the shareholders present, shall act as chairman of the
meeting. The Secretary, or, in the absence of the Secretary, an Assistant
Secretary, or in the absence of both the Secretary and Assistant Secretaries, a
person appointed by the Chairman, shall act as secretary of the meeting.
Section 3.07. Voting Rights of Shareholders. Unless otherwise provided
in the Articles of Incorporation, every shareholder of the Company shall be
entitled to one vote for every share standing in the name of the shareholder in
the books of the Company.
Section 3.08. Voting and Other Action by Proxy.
(a) General Rule.
(1) Every shareholder entitled to vote at a meeting
of shareholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person to act for the
shareholder by proxy.
(2) The presence of, or vote or other action at a
meeting of shareholders, or the expression of consent or dissent to
corporate action in writing, by a proxy of a shareholder shall
constitute the presence of, or vote or action by, or written consent or
dissent of, the shareholder.
(3) Where two or more proxies of a shareholder are
present, the Company shall, unless otherwise expressly provided in the
proxy, accept as the vote of all shares represented thereby the vote
cast by a majority of them and, if a majority of the proxies cannot
agree whether the shares represented shall be voted or upon the manner
of voting the shares, the voting of the shares shall be divided equally
among those persons.
(b) Minimum Requirements. Every proxy shall be executed in
writing by the shareholder or by the duly authorized attorney-in-fact of the
shareholder and filed with the Secretary of the Company. A proxy, unless coupled
with an interest, shall be revocable at will, notwithstanding any other
agreement or any provision in the proxy to the contrary, but the revocation of a
proxy shall not be effective unless written notice thereof has been given to the
Secretary. An unrevoked proxy shall not be valid after three years from the date
of its execution unless a longer time is expressly provided therein. A proxy
shall not be revoked by the death or incapacity of the maker unless, before the
vote is counted or the authority is exercised, written notice of the death or
incapacity is given to the Secretary of the Company.
(c) Expenses. The Company shall pay the reasonable expenses of
solicitation of votes, proxies or consents of shareholders by or on behalf of
the board of directors or its nominees for election to the board, including
solicitation by professional proxy solicitors and otherwise.
Section 3.09. Voting by Fiduciaries and Pledgees. Shares of the Company
standing in the name of a trustee or other fiduciary and shares held by an
assignee for the benefit of creditors or by a receiver may be voted by the
trustee, fiduciary, assignee or receiver. A shareholder whose shares are pledged
shall be entitled to vote the shares unless the shares have been transferred
into the name of the pledgee, or a nominee of the pledgee, but nothing in this
section shall affect the validity of a proxy given to a pledgee or nominee.
Section 3.10. Voting by Joint Holders of Shares.
(a) General Rule. Where shares of the Company are held jointly or as
tenants in common by two or more persons, as fiduciaries or otherwise:
(1) if only one or more of such persons is present in
person or by proxy, all of the shares standing in the names of such
persons shall be deemed to be represented for the purpose of
determining a quorum and the Company shall accept as the vote of all
the shares the vote cast by a joint owner or a majority of them; and
(2) If the persons are equally divided upon whether
the shares held by them shall be voted or upon the manner of voting the
shares, the voting of the shares shall be divided equally among the
persons without prejudice to the rights of the joint owners or the
beneficial owners thereof among themselves.
(b) Exception. If there has been filed with the Secretary of
the Company a copy, certified by an attorney at law to be correct, of the
relevant portions of the agreement under which the shares are held or the
instrument by which the trust or estate was created or the order of court
appointing them or of an order of court directing the voting of the shares, the
persons specified as having such voting power in the document latest in date of
operative effect so filed, and only those persons shall be entitled to vote the
shares but only in accordance therewith.
Section 3.11. Voting by Corporations.
(a) Voting by Corporate Shareholders. Any corporation that is
a shareholder of this Company may vote at meetings of shareholders of this
Company by any of its officers or agents, or by proxy appointed by any officer
or agent, unless some other person, by resolution of the board of directors of
the other corporation or a provision of its Articles of Incorporation or Bylaws,
a copy of which resolution or provision certified to be correct by one of its
officers has been filed with the Secretary of this Company, is appointed its
general or special proxy in which case that person shall be entitled to vote the
shares.
Section 3.12. Determination of Shareholders of Record.
(a) Fixing Record Date. The board of directors may fix a time
prior to the date of any meeting of shareholders as a record date for the
determination of the shareholders entitled to notice of, or to vote at, the
meeting, which time, except in the case of an adjourned meeting, shall be not
more than 60 days prior to the date of the meeting of shareholders. Only
shareholders of record on the date fixed shall be so entitled notwithstanding
any transfer of shares on the books of
the Company after any record date fixed as provided in this subsection. The
board of directors may similarly fix a record date for the determination of
shareholders of record for any other purpose. When a determination of
shareholders of record has been made as provided in this section for purposes of
a meeting, the determination shall apply to any adjournment thereof unless the
board fixes a new record date for the adjourned meeting.
(b) Determination When No Record Date Fixed. If a record date is not fixed:
(1) The record date for determining shareholders entitled to notice of or to
vote at a meeting of shareholders 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 immediately preceding the day on which the meeting
is held.
(2) The record date for determining those
shareholders entitled to express consent or dissent to corporate action
in writing without a meeting, when prior action by the board of
directors is not necessary, shall be the close of business on the day
on which the first written consent or dissent is filed with the
Secretary of the Company.
(3) The record date for determining shareholders for
any other purpose shall be at the close of business on the day on which
the board of directors adopts the resolution relating thereto.
Section 3.13. Voting Lists.
(a) General Rule. The officer or agent having charge of the
transfer books for shares of the Company shall make a complete list of the
shareholders entitled to vote at any meeting of shareholders, arranged in
alphabetical order, with the address of and number of shares held by each. The
list shall be produced and kept open at the time and place of the meeting and be
subject to the inspection of any shareholder during the meeting for the purposes
thereof.
(b) Effect of List. Failure to comply with the requirements of
this Section shall not affect the validity of any action taken at a meeting
prior to a demand at the meeting by any shareholder entitled to vote thereat to
examine the list. The original share register or transfer book, or a duplicate
thereof kept at the Registered Office of the Company, or at such other place as
determined by the board of directors, shall be prima facie evidence as to who
are the shareholders entitled to examine the list or share register or transfer
book or to vote at any meeting of shareholders.
Section 3.14. Judges of Election.
(a) Appointment. In advance of or at any meeting of
shareholders of the Company, the board of directors may appoint judges of
election, who need not be shareholders, to act at the meeting or any adjournment
thereof. If judges of election are not so appointed, the presiding officer of
the meeting may, and on the request of any shareholder shall, appoint judges of
election at the meeting. The number of judges shall be two. A person who is a
candidate for an office to be filled at a meeting shall not act as a judge.
(b) Vacancies. In case any person appointed as a judge fails
to appear or refuses to act, the vacancy may be filled by appointment made by
the board of directors in advance of the convening of the meeting or at the
meeting by the presiding officer.
(c) Duties. The judges of election shall determine the number
of shares outstanding and voting power of each, the shares represented at the
meeting, the existence of a quorum, and the authenticity, validity and effect of
proxies, receive votes or ballots, hear and determine all challenges and
questions in any way arising in connection with nominations by shareholders and
the right to vote, count and tabulate all votes, determine the result and do
such acts as may be proper to conduct the election or vote with fairness to all
shareholders. The judges of election shall perform their duties impartially, in
good faith, to the best of their ability and as expeditiously as is practical,
the decision, act or certificate of a majority shall be effective in all
respects as the decision, act or certificate of all.
(d) Report. On request of the presiding officer of the meeting
or any shareholder, the judges shall make a report in writing of any challenge,
question or matter determined by them and execute a certificate of any fact
found by them. Any such report or certificate shall be prima facie evidence of
the facts stated therein.
Section 3.15. Consent of Shareholders in Lieu of Meeting.
Any action required or permitted to be taken at a meeting of
the shareholders or of a class of shareholders may be taken without a meeting
if, prior or subsequent to the action, a consent or consents thereto signed by
all the shareholders who would be entitled to vote at a meeting for such purpose
shall be filed with the minutes of the proceedings of the shareholders of the
Company.
Section 3.16. Minors as Securityholders. The company may treat a
minor who holds shares or obligations of the Company as having capacity to
receive and empower others to receive
dividends, interest, principal and other payments or distributions, to vote or
express consent or dissent and to make elections and exercise rights relating to
such shares or obligations unless, in the case of payments or distributions on
shares, the corporate officer responsible for maintaining the list of
shareholders or the transfer agent of the Company or, in the case of payments or
distributions on obligations, the Treasurer or paying officer or agent has
received written notice that the holder is a minor.
ARTICLE IV
Board of Directors
Section 4.01. Powers; Personal Liability.
(a) General Rule. Unless otherwise provided by statute all powers vested by
law in the Company shall be exercised by or under the authority of, and the
business and affairs of the Company shall be managed under the direction of the
board of directors.
(b) Notation of Dissent. A director who is present at a
meeting of the board of directors, or of a committee of the board of directors,
at which action on any corporate matter is taken shall be presumed to have
assented to the action taken unless his or her dissent is entered in the minutes
of the meeting or unless the director files a written dissent to the action with
the secretary of the meeting before the adjournment thereof or transmits the
dissent in writing to the Secretary of the Company immediately after the
adjournment of the meeting. The right to dissent shall not apply to a director
who voted in favor of the action. Nothing in this Section shall bar a director
from asserting that the minutes of the meeting incorrectly omitted his or her
dissent if, promptly upon receipt of a copy of such minutes, the director
notifies the Secretary, in writing, of the asserted omission or inaccuracy.
Section 4.02. Qualifications and Selection of Directors.
(a) Qualifications. Each director of the Company shall be a natural person
of full age who need not be a resident of the State of Nevada or a shareholder
of the Company.
(b) Power to Select Directors. Except as otherwise provided in these
Bylaws, directors of the Company shall be elected by the shareholders.
(c) Nomination of Candidates. Subject to the rights of any
class or series of stock having a preference over the common stock as to
dividends or upon dissolution to elect directors under specified circumstances,
nominations for election of directors may be made by any shareholder entitled to
vote for the election of directors only if notice of such shareholder's intent
to nominate a director at the meeting is given by the shareholder and received
by the Secretary of the Corporation in the manner and within the time specified
herein. Notice must be received by the Secretary of the Corporation not less
than 150 days prior to the date fixed for the Annual Meeting of shareholders
pursuant to these Bylaws; provided, however, that if directors are to be elected
by the shareholders at any other time, notice must be received by the Secretary
of the Corporation not later than the seventh day following the day on which
notice of the meeting was first mailed to shareholders. The notice may either be
delivered or may be mailed to the Secretary of the Corporation by certified or
registered mail, return receipt requested.
The notice shall be in writing and shall contain:
(i) the name and residence of such shareholder;
(ii) a representation that the shareholder is a holder of
voting stock of the Corporation and intends to appear in person or by proxy at
the meeting to nominate the person or persons specified in the notice;
(iii) such information regarding each nominee as would have
been required to be included in a proxy statement filed pursuant to Regulation
14A of the rules and regulations established by the Securities and Exchange
Commission under the Securities Exchange Act of 1934 (or pursuant to any
successor act or regulation) had proxies been solicited with respect to such
nominee by the management or Board of Directors of the Corporation; and
(iv) the consent of each nominee to serve as director of the Corporation if
so elected.
The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that any nomination made at the meeting was not made in
accordance with the foregoing procedures and, in such event, the nomination
shall be disregarded.
(d) Election of Directors. In elections for directors, the
candidates receiving the highest number of votes from each class or group of
classes, if any, entitled to elect directors separately up to the number of
directors to be elected by the class or group of classes shall be elected. If at
any meeting of shareholders, directors of more than one class are to be elected,
each class of directors shall be elected in a separate election.
Section 4.03. Number and Term of Office.
(a) Number. The board of directors shall consist of such
number of directors, not less than three nor more than nine, as may be
determined from time to time by resolution of the board of directors. The Board
of Directors shall be divided into three classes, each class of which shall be
as nearly equal in number as possible, the term of office of at least one class
shall expire in each year, and the members of a class shall not be elected for a
shorter period than one year, or for a longer period than three years. One-third
(or the nearest approximation thereto) of the number of the Board of Directors,
determined as aforesaid, shall be elected at each Annual Meeting of the
shareholders by a meeting plurality vote, for terms to expire at the third
subsequent meeting of shareholders at which directors are elected.
(b) Term of Office. Each director shall hold office until the
expiration of the term for which he or she was selected and until a successor
has been elected and qualified or until his or her earlier death, resignation or
removal. A decrease in the number of directors shall not have the effect of
shortening the term of any incumbent director.
(c) Resignation. Any director may resign at any time upon
written notice to the Company. The resignation shall be effective upon receipt
thereof by the Company or at such subsequent time as shall be specified in the
notice of resignation.
Section 4.04. Vacancies.
(a) General Rule. All vacancies in the board of directors,
whether caused by resignation, death, or otherwise, may be filled by the
remaining director or a majority of the remaining directors attending a stated
special meeting called for that purpose even though less than a quorum be
present; provided, however, in the event of a change in control of the Company,
all vacancies in the Board of Directors shall be filled by the directors who
where directors prior to the change in control (the "Continuing Directors"). A
director thus elected to fill any vacancy shall hold office for the unexpired
term of his predecessor and until his successor is elected and qualifies.
For purposes of these Bylaws, a "change in control of the Company"
shall mean a change in control of a nature that would be required to be reported
in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934 (the "Exchange Act"). Such a change in control
shall be deemed to have occurred if (a) any "person" as such term is used in
Sections 13(d) and 14(d) of the Exchange Act, other than the Company or any
"person" who is a director or officer of the Company, is or becomes the
"beneficial owner" as defined in Rule 13d-3 under the Exchange Act, directly or
indirectly, of securities of the Company representing 20% or more of the
combined voting power of the Company's then outstanding securities, or (b)
during any twelve month period individuals who at the beginning of such period
constitute the Board of Directors of the Company cease, for any reason, to
constitute at least a majority, unless the election of each director who was not
a director at the beginning of the period has been approved in advance by
directors representing at least two-thirds of the directors then in office who
were directors at the beginning of the period.
(b) Action by Resigned Directors. When a director resigns from
the board of directors effective at a future date, the directors then in office,
including those who have so resigned, shall have power by applicable vote to
fill the vacancies, the vote thereon to take effect when the resignations become
effective.
Section 4.05. Removal of Directors.
(a) Removal by the Shareholders. The entire board of
directors, or any class of the board of directors, or any individual director
may be removed from office by a vote of two-thirds of the shareholders entitled
to vote thereon without assigning any cause. In case the board of directors of a
class thereof or any one or more directors are so removed, new directors may be
elected at the same meeting.
Section 4.06. Place of Meetings. Meetings of the board of directors may
be held at the Registered Office of the Company, or at such place as the board
of directors may from time to time appoint or as may be designated in the notice
of the meeting.
Section 4.07. Organization of Meetings. At every meeting of the board
of directors, the Chairman, if there be one, or, in the case of a vacancy in the
office or absence of the Chairman of the board, one of the following officers
present in the order stated: the Vice Chairman, if there be one, the President,
the Vice Presidents in their order of rank and seniority, or a person chosen by
a majority of the directors present, shall act as chairman of the meeting. The
Secretary, or, in the absence of the Secretary, an Assistant Secretary, or in
the absence of the Secretary and the Assistant Secretaries, any person appointed
by the chairman of the meeting, shall act as secretary of the meeting.
Section 4.08. Regular Meetings. Regular meetings of the board of directors
shall be held at such time and place as shall be designated from time to time by
resolution of the board of directors.
Section 4.09. Special Meetings. Special meetings of the board of directors
shall be held whenever called by the Chairman or by a majority of directors in
office.
Section 4.10. Quorum of and Action by Directors.
(a) General Rule. A majority of the directors in office shall
be necessary to constitute a quorum for the transaction of business and the acts
of a majority of the directors present and voting at a meeting where a quorum is
present shall be the acts of the board of directors.
(b) Action by Written Consent. Any action required or
permitted to be taken at a meeting of the directors may be taken without a
meeting if, prior or subsequent to the action, a consent or consents thereto
signed by all of the directors in office is filed with the minutes of the
proceedings of the board of directors.
Section 4.11. Executive and Other Committees.
(a) Establishment and Powers. The board of directors may, by
resolution adopted by a majority of the directors in office, establish one or
more committees to consist of one or more directors of the Company. Any
committee, to the extent provided in the resolution of the board of directors,
shall have and may exercise all of the powers and authority of the board of
directors except that a committee shall not have any power or authority as to
the following:
(1) the submission to shareholders of any action requiring approval of
shareholders under the laws of the State of Nevada; (2) the creation or filling
of vacancies in the board of directors; (3) the adoption, amendment or repeal of
these Bylaws; (4) the amendment or repeal of any resolution of the board of
directors that by its terms is amendable or repealable only by the board of
directors; and
(5) action or matters committed by a resolution of the board of directors
to another committee of the board of directors.
(b) Alternate Committee Members. 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 or for
the purposes of any written action by the committee. In the absence or
disqualification of a member and alternate member or members of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not constituting a quorum, may unanimously appoint another
director to act at the meeting in the place of the absent or disqualified
member.
(c) Term. Each committee of the board of directors shall serve at the
pleasure of the board of directors.
(d) Committee Procedures. The term "board of directors" when
used in any provision of these Bylaws relating to the organization or procedures
of or the manner of taking action by the board of directors, shall be construed
to include and refer to any executive or other committee of the board of
directors.
Section 4.12. Compensation. The board of directors shall have the authority
to fix the compensation of directors for their services as directors and a
director may be a salaried officer of the Company.
ARTICLE V
Officers
Section 5.01. Officers Generally.
(a) Number, Qualifications and Designation. The officers of
the Company shall be the, President one or more Vice Presidents, Secretary,
Treasurer and such other officers as may be elected in accordance with the
provisions of Section 5.03. Officers may but need not be directors or
shareholders of the Company. The President, Treasurer, Secretary and all other
officers of the Company shall be natural persons of full age. The board of
directors may elect from among its members a Chairman and Vice Chairman who
shall be officers of the Company. Any number of offices may be held by the same
person.
(b) Bonding. The Company may secure the fidelity of any or all of its
officers by bond or otherwise.
(c) Standard of Care. Except as otherwise provided in the
Articles of Incorporation, an officer shall perform his or her duties as an
officer in good faith, in a manner he or she reasonably believes to be in the
best interests of the Company and with such care, including reasonable inquiry,
skill and diligence, as a person of ordinary prudence would use under similar
circumstances. A person who so performs his or her duties shall not be liable by
reason of having been an officer of the Company.
Section 5.02. Election, Term of Office and Resignations.
(a) Election and Term of Office. The officers of the Company,
except those elected by delegated authority pursuant to Section 5.03, shall be
elected annually by the board of directors and each such officer shall hold
office for a term of one year and until a successor has been selected and
qualified or until his or her earlier death, resignation or removal. The board
of directors, as soon as may be done after each annual meeting of stockholders
and election, shall choose a President, Secretary and Treasurer and from time to
time one or more Vice Presidents, Assistant Secretaries and Assistant
Treasurers, and may appoint such other officers, agents and employees as it may
deem proper. Any two or more offices may be held by the same person.
(b) Resignations. Any officer may resign at any time upon
written notice to the Company. The resignation shall be effective upon its
receipt by the Company or at such subsequent time as may be specified in the
notice of resignation.
Section 5.03. Other Officers, Committees and Agents. The board of
directors may from time to time elect such other officers and appoint such
committees, employees or other agents as the business of the Company may
require, including a Chief Financial Officer, an Executive Vice President, a
Chief Operating Officer and one or more Assistant Secretaries, each of whom
shall hold office for such period, have such authority and perform such duties
as are provided in these Bylaws, or as the board of directors may from time to
time determine. The board of directors may delegate to any officer or committee
the power to elect subordinate officers and to retain or appoint employees or
other agents, or committees thereof, and to prescribe the authority and duties
of such subordinate officers, committees, employees or other agents.
Section 5.04. Removal of Officers and Agents. Any officer or agent of
the Company may be removed by the board of directors with or without cause. The
removal shall be without prejudice to the contract rights, if any, of any person
so removed. Election or appointment of an officer or agent shall not of itself
create contract rights.
Section 5.05. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification, or any other cause may be filled by the
board of directors or by the officer or committee to which the power to fill
such office has been delegated pursuant to Section 5.03, as the case may be, and
if the office is one for which these Bylaws prescribe a term, shall be filled
for the unexpired portion of the term.
Section 5.06. Authority. All officers of the Company, as between
themselves and the Company, shall have such authority and perform such duties in
the management of the Company as may be provided by or pursuant to resolutions
or orders of the board of directors or, in the absence of controlling provisions
in the resolutions or orders of the board of directors, as may be determined by
or pursuant to these Bylaws.
Section 5.07. Chairman and Vice Chairman of the Board. The Chairman, or
in the absence of the Chairman, the Vice Chairman, shall preside at all meetings
of the shareholders and of the board of directors, and shall perform such other
duties as may from time to time be requested by the board of directors.
Section 5.08. President. The President shall be the chief executive
officer of the Company and shall have general supervision over its business and
subject however, to the control of the board of directors. The President shall
sign, execute, and acknowledge, in the name of the Company, deeds, mortgages,
bonds, contracts or other instruments authorized by the board of directors,
except in cases where the signing and execution thereof shall be expressly
delegated by the board of directors, these Bylaws or law to some other officer
or agent of the Company and in general shall perform all duties incident to the
office of President and such other duties as from time to time may be assigned
by the board of directors.
Section 5.09. Vice Presidents. The Vice Presidents shall perform the
duties of the President in the absence of the President and such other duties as
may from time to time be assigned to them by the board of directors or the
President. The Vice Presidents may sign, execute, and acknowledge, in the name
of the Company, deeds, mortgages, bonds, contracts or other instruments
authorized by the board of directors, except in cases where the signing and
execution thereof shall be expressly delegated by the board of directors, these
Bylaws or law to some other officer or agent of the Company.
Section 5.10. Secretary. The Secretary or an Assistant Secretary shall
attend all meetings of the shareholders and board of directors and record the
votes of shareholders and directors, the minutes of the meetings of
shareholders, board of directors and of committees of the board of directors in
a book or books to be kept for that purpose; ensure notices are given and
records and reports properly kept and filed by the Company as required by law;
serve as custodian of the seal of
the Company and ensure it is affixed to all documents to be executed on behalf
of the Company under seal; and, in general, perform all duties incident to the
office of Secretary and such other duties as may from time to time be assigned
by the board of directors or the President .
Section 5.11. Treasurer. The Treasurer shall have or provide for the
custody of the funds or other property of the Company; collect and receive or
provide for the collection and receipt of moneys earned by or in any manner due
to or received by the Company; deposit all funds in his or her custody as
Treasurer in such banks or other places of deposit as the board of directors may
from time to time designate; whenever so required by the board of directors,
render an account showing all transactions as Treasurer, and the financial
condition of the Company; and, in general, discharge such other duties as may
from time to time be assigned by the board of directors or the President. The
Treasurer may sign, execute and acknowledge in the name of the Company deeds,
mortgages, bonds, contracts or other instruments authorized by the board of
directors, except in cases where the signing and execution thereof shall be
expressly delegated by the board of directors, these Bylaws or law to some other
officer or agent of the Company.
Section 5.12. Salaries. The salaries of the officers elected by the
board of directors shall be fixed from time to time by the board of directors or
by such officer as may be designated by resolution of the board of directors.
The salaries or other compensation of any other officers, employees and other
agents shall be fixed from time to time by the officer or committee to which the
power to elect such officers or to retain or appoint such employees or other
agents has been delegated pursuant to Section 5.03. No officer shall be
prevented from receiving a salary or other compensation by reason of the fact
the officer is also a director of the Company.
ARTICLE VI
Certificates of Stock Transfer, Etc.
Section 6.01 Share Certificates.
(a) Form of Certificates. Certificates for shares of the
Company shall be in the form as approved by the board of directors and state the
Company is incorporated under the laws of the State of Nevada, the name of the
person to whom issued and the number and class of shares and the designation of
the series (if any) the certificate represents. If the Company is authorized to
issue shares of more than one class or series, certificates for shares of the
Company shall set forth upon the face or back of the certificate (or shall state
on the face or back of the certificate that the Company will furnish to any
shareholder upon request and without charge), a full or summary statement of the
designations, voting rights, preferences, limitations and special rights of the
shares of each class or series authorized to be issued so far as they have been
fixed and determined and the authority of the board of directors to fix and
determine the designations, voting rights, preferences, limitations and special
rights of the classes and series of shares of the Company.
(b) Share Register. The share register or transfer books and blank share
certificates shall be kept by the Secretary or by any transfer agent or
registrar designated by the board of directors for that purpose.
Section 6.02. Issuance. The share certificates of the Company shall be
numbered and registered in the share register or transfer books of the Company
as they are issued. They shall be executed in such manner as the board of
directors shall determine.
Section 6.03. Transfer. Transfers of shares shall be made on the share
register or transfer books of the Company upon surrender of the certificate
therefor, endorsed by the person named in the certificate or by an attorney
lawfully constituted in writing. No transfers shall be made inconsistent with
the provisions of the Uniform Commercial Code, its amendments and supplements.
Section 6.04. Record Holder of Shares. The Company shall be entitled to
treat the person in whose name any share or shares of the Company stand on its
books as the absolute owner thereof, 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.
Section 6.05. Lost, Destroyed or Mutilated Certificates. The holder of
any shares of the Company shall immediately notify the Company of any loss,
destruction or mutilation of the certificate therefor, and the board of
directors may, in its discretion, cause a new certificate or certificates to be
issued to such holder, in case of mutilation of the certificate, upon the
surrender of the mutilated certificate or in case of loss or destruction of the
certificate, upon satisfactory proof of such loss or destruction, and if the
board of directors shall so determine, the deposit of a bond in such form and in
such sum, and with such surety or sureties, as it may direct.
ARTICLE VII
Miscellaneous
Section 7.01. Corporate Seal. The Company shall have a corporate seal
in the form of a circle containing the name of the Company, the year of its
incorporation and such other details as may be approved by the board of
directors.
Section 7.02. Checks. All checks, notes, bills of exchange or other
orders in writing shall be signed by such person or persons as the board of
directors or any person authorized by resolution of the board of directors may
from time to time designate.
Section 7.03. Contracts. Except as otherwise provided in the case of
transactions which require action by the shareholders, the board of directors
may authorize any officer or agent to enter into any contract or to execute or
deliver any instrument on behalf of the Company, and such authority may be
general or confined to specific instances.
Section 7.04. Interested Directors or Officers; Quorum.
(a) General Rule. A contract or transaction between the
Company and one or more of its directors or officers or between the Company and
another corporation, partnership, joint venture, trust or other enterprise in
which one or more of its directors or officers are directors or officers or have
a financial or other interest shall not be void or voidable solely for that
reason, or solely because the director or officer is present at or participates
in the meeting of the board of directors that authorizes the contract or
transaction, or solely because his, her or their votes are counted for that
purpose, if:
(1) the material facts as to the relationship or
interest and as to the contract or transaction are disclosed or are
known to the board of directors and it authorizes the contract or
transaction by the affirmative vote of a majority of the disinterested
directors even though the disinterested directors are less than a
quorum; or
(2) the material facts as to his or her relationship
or interest and as to the contract or transactions are disclosed or are
known to the shareholders entitled to vote thereon and the contract or
transaction is specifically approved in good faith by vote of those
shareholders; or
(3) the contract or transaction is fair as to the Company as of the time it
is authorized, approved or ratified by the board of directors or the
shareholders.
(b) Quorum. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board of directors
which authorizes a contract or transaction specified in subsection (a) above.
Section 7.05. Deposits. All funds of the Company shall be deposited
from time to time to the credit of the Company in such banks, trust companies or
other depositaries as the board of directors may approve or designate, and all
such funds shall be withdrawn only upon checks signed by such one or more
officers or employees as the board of directors shall from time to time
determine.
Section 7.06. Corporate Records.
The Company shall keep complete and accurate books and records
of account, minutes of the proceedings of the incorporators, shareholders and
directors and a share register giving the names and addresses of all
shareholders and the number and class of shares held by each. The share register
or a copy thereof shall be kept at the Registered Office of the Company, and its
principal place of business wherever situated or at the office of its registrar
or transfer agent. Any books, minutes or other records may be in written form or
any other form capable of being converted into written form within a reasonable
time.
Section 7.07. Amendment of Bylaws. These Bylaws may be amended or
repealed, or new Bylaws adopted, either (i) by vote of the shareholders at any
duly organized annual or special meeting of shareholders, but subject to the
provisions of the Articles of Incorporation, or (ii) by vote of a majority of
the board of directors of the Company in office at any regular or special
meeting of directors. Any change in these Bylaws shall take effect when adopted
unless otherwise provided in the resolution effecting the change.