EXHIBIT 3.5
BYLAWS
OF
AMERICA'S SHOPPING MALL, INC.
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ARTICLE I
STOCKHOLDERS
Section 1.01 Annual Meeting. An annual meeting of the stockholders of the
corporation shall be held on the date and at the time and place as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting, for the purpose of electing directors of the corporation to
serve during the ensuing year and for the transaction of such other business as
may properly come before the meeting. If the election of the directors is not
held on the day designated herein for any annual meeting of the stockholders, or
at any adjournment thereof, the president shall cause the election to be held at
a special meeting of the stockholders as soon thereafter as is convenient.
Section 1.02 Special Meetings.
(a) Special meetings of the stockholders may be called by the chairman, the
president or the Board of Directors and shall be called by the chairman, the
president or the Board of Directors at the written request of the holders of not
less than 10% of the voting power of any class of the corporation's stock
entitled to vote.
(b) No business shall be acted upon at a special meeting except as set
forth in the notice calling the meeting, unless one of the conditions for the
holding of a meeting without notice set forth in Section 1.05 shall be
satisfied, in which case any business may be transacted and the meeting shall be
valid for all purposes.
(c) In the event of a default under, or a breach of which (in the judgment
of the Pioneer Partnership) adversely affects the Pioneer Partnership, or the
Investment Agreement, or the Certificate of Designation of Preferred Stock under
which the Pioneer Partnership or its assigns are a holder of Preferred Stock, or
under the Debenture the Principal Shareholders agree to call and the Company
agrees to pay the expenses associated with a special meeting of the Shareholders
at the sole expense of the Company, and the principal Shareholders each agree
that they shall vote in favor of that number of and those nominees to the Board
of Directors designated by the Pioneer Partnership such that the nominees of the
Pioneer Partnership, taken in the aggregate,
shall constitute a majority of the directors of the Company, after any such
defaults, for so long as the Pioneer Partnership, its partners or affiliates own
Preferred Stock, Warrants or Common Stock obtained through the conversion of
Preferred Stock or the exercise of Warrants or there remains any amount
outstanding under the Debenture. The Principal Shareholders hereby agree to take
no action to contravene, limit or otherwise terminate the Pioneer Partnership
board of election mechanism. The Principal Shareholders agree to vote in favor
of such Pioneer Partnership nominees for so long as the Partnership, its
partners or affiliates own Preferred Stock, Warrants or Common Stock obtained
through the conversion of Preferred Stock or the exercise of Warrants or there
remains any amount outstanding under the Debenture.
Section 1.03 Place of Meetings. Any meeting of the stockholders of the
corporation may be held at its registered office in the State of Nevada or at
such other place in or out of the United States as the Board of Directors may
designate. A waiver of notice signed by stockholders entitled to vote may
designate any place for the holding of such meeting.
Section 1.04 Notice of Meetings.
(a) The president, a vice president, the secretary, an assistant secretary
or any other individual designated by the Board of Directors shall sign and
deliver written notice of any meeting at least ten (10) days, but not more than
sixty (60) days, before the date of such meeting. The notice shall state the
place, date and time of the meeting and the purpose or purposes for which the
meeting is called.
(b) In the case of an annual meeting, any proper business may be presented
for action, except that action on any of the following items shall be taken only
if the general nature of the proposal is stated in the notice:
(1) Action with respect to any contract or transaction between the
corporation and one or more of its directors or officers or between the
corporation and any corporation, firm or association in which one or more
of the corporation's directors or officers is a director or officer or is
financially interested;
(2) Adoption of amendments to the Articles of Incorporation; or
(3) Action with respect to a merger, share exchange, reorganization,
partial or complete liquidation, or dissolution of the corporation.
(c) A copy of the notice shall be personally delivered or mailed postage
prepaid to each stockholder of record entitled to vote at the meeting at the
address appearing on the records of the corporation, and the notice shall be
deemed delivered the date the same is deposited in the United States mail for
transmission to such stockholder. If the address of any stockholder does not
appear upon the records of the corporation, it
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will be sufficient to address any notice to such stockholder at the registered
office of the corporation.
(d) The written certificate of the individual signing a notice of meeting,
setting forth the substance of the notice or having a copy thereof attached, the
date the notice was mailed or personally delivered to the stockholders and the
addresses to which the notice was mailed, shall be prima facie evidence of the
manner and fact of giving such notice.
(e) Any stockholder may waive notice of any meeting by a signed writing,
either before or after the meeting.
Section 1.05 Meeting Without Notice.
(a) Whenever all persons entitled to vote at any meeting consent, either
by:
(1) A writing on the records of the meeting or filed with the
secretary; or
(2) Presence at such meeting and oral consent entered on the minutes;
or
(3) Taking part in the deliberations at such meeting without
objection;
The actions of such meeting shall be as valid as if had at a meeting
regularly called and noticed.
(b) At such meeting any business may be transacted that is not excepted
from the written consent or to the consideration of which no objection for want
of notice is made at the time.
(c) If any meeting be irregular for want of notice or of such consent,
provided a quorum was present at such meeting, the proceedings of the meeting
may be ratified and approved and rendered likewise valid and the irregularity or
defect therein waived by a writing signed by all parties having the right to
vote at such meeting.
(d) Such consent or approval may be by proxy or attorney, but all such
proxies and powers of attorney must be in writing.
Section 1.06 Determination of Stockholders of Record.
(a) For the purpose of determining the stockholders entitled to notice of
and to vote at any meeting of stockholders or any adjournment thereof, or to
express
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consent to corporate action in writing without a meeting, or entitled to receive
payment of any distribution or the allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10)
days before the date of such meeting, nor more than sixty (60) days prior to any
other action.
(b) If no record date is fixed, the record date for determining
stockholders: (i) entitled to notice of and to vote at a meeting of stockholders
shall be at the close of business on the business day next preceding the day on
which notice is given, or, if notice is waived, at the close of business on the
business day next preceding the day on which the meeting is held; (ii) entitled
to express consent to corporate action in writing without a meeting shall be the
day on which the first written consent is signed; and (iii) 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. A determination of
stockholders of record entitled to notice of or to vote at any 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.
Section 1.07 Quorum; Adjourned Meetings.
(a) Unless the Articles of Incorporation provide for a different
proportion, stockholders holding at least a majority of the voting power of the
corporation's stock, which includes the voting power that is present in person
or by proxy, regardless of whether the proxy has authority to vote on all
matters, are necessary to constitute a quorum for the transaction of business at
any meeting.
(b) If a quorum is not represented, a majority of the voting power so
represented may adjourn the meeting from time to time until holders of the
voting power required to constitute a quorum shall be represented. At any such
adjourned meeting at which a quorum shall be represented, any business may be
transacted which might have been transacted as originally called. When a
stockholders meeting is adjourned to another time or place hereunder, 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. The stockholders
present at a duly convened meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum of the voting power.
Section 1.08 Voting.
(a) Unless otherwise provided in the Articles of Incorporation or in the
resolution providing for the issuance of the stock adopted by the Board of
Directors pursuant to authority expressly vested in it by the provisions of the
Articles of Incorporation, at every meeting of the stockholders, each holder of
shares of stock shall
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be entitled to cast one (1) vote in person or by proxy for each share of stock
standing in his or her name on the transfer books of the Corporation.
(b) Except as otherwise provided herein, all votes with respect to shares
standing in the name of an individual on the record date (including pledged
shares) shall be cast only by that individual or such individual's duly
authorized proxy, attorney-in-fact or voting trustee(s) pursuant to a voting
trust. With respect to shares held by a representative of the estate of a
deceased stockholder, or by a guardian, conservator, custodian or trustee, votes
may be cast by such holder upon proof of capacity, even though the shares do not
stand in the name of such holder. In the case of shares under the control of a
receiver, the receiver may cast votes carried by such shares even though the
shares do not stand in the name of the receiver; provided, that the order of the
court of competent jurisdiction which appoints the receiver contains the
authority to cast votes carried by such shares. If shares stand in the name of a
minor, votes may be cast only by the duly appointed guardian of the estate of
such minor if such guardian has provided the corporation with written proof of
such appointment.
(c) With respect to shares standing in the name of another corporation,
partnership, limited liability company or other legal entity on the record date,
votes may be cast: (i) in the case of a corporation, by such individual as the
bylaws of such other corporation prescribe, by such individual as may be
appointed by resolution of the board of directors of such other corporation or
by such individual (including the officer making the authorization) authorized
in writing to do so by the chairman of the board of directors, president or any
vice-president of such corporation and (ii) in the case of a partnership,
limited liability company or other legal entity, by an individual representing
such stockholder upon presentation to the corporation of satisfactory evidence
of his authority to do so.
(d) Notwithstanding anything to the contrary herein contained, no votes may
be cast for shares owned by this corporation or its subsidiaries, if any. If
shares are held by this corporation or its subsidiaries, if any, in a fiduciary
capacity, no votes shall be cast with respect thereto on any matter except to
the extent that the beneficial owner thereof possesses and exercises either a
right to vote or to give the corporation holding the same binding instructions
on how to vote.
(e) Any holder of shares entitled to vote on any matter may cast a portion
of the votes in favor of such matter and refrain from casting the remaining
votes or cast the same against the proposal, except in the case of elections of
directors. If such holder entitled to vote fails to specify the number of
affirmative votes, it will be conclusively presumed that the holder is casting
affirmative votes with respect to all shares held.
(f) With respect to shares standing in the name of two or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in common,
husband and wife as community property, tenants by the entirety, voting
trustees, persons entitled to vote under a stockholder voting agreement or
otherwise and shares held by two or
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more persons (including proxy holders) having the same fiduciary relationship in
respect to the same shares, votes may be cast in the following manner:
(1) If only one person votes, the vote of such person binds all.
(2) If more than one person casts votes, the act of the majority so
voting binds all.
(3) If more than one person casts votes, but the vote is evenly split
on a particular matter, the votes shall be deemed cast proportionately, as
split.
(g) If a quorum is present, unless the Articles of Incorporation or these
Bylaws provide for a different proportion, action by the stockholders on any
matter other than the election of directors is approved if the number of votes
cast in favor of the action exceeds the number of votes cast in opposition to
the action. Directors of the Corporation shall be elected by a plurality of the
votes cast at the election.
(h) Each of the Principal Shareholders agrees that, so long as (i) the
Pioneer Partnership, its Partners or affiliates shall own any Preferred Stock,
Warrants or Common Stock obtained either through conversion of the Preferred
Stock or exercise of the Warrants, or (ii) any amounts remain outstanding under
the Debenture each of the Principal Sharehoulders shall vote all of their Common
Shares, whether now owned or hereafter acquired, for the election as a
director(s) of the Company of the designee(s) of the Pioneer Partnership in
accordance with paragraph 1.10 of the Investment Agreement at any meeting of the
Company's shareholders at which such designee shall be nominated as a director.
Without limiting the generality of the foregoing, the Principal Shareholders
agree to execute and deliver any and all documents, agreements and instruments,
including, without limitation, proxies, as the Pioneer Partnership shall
reasonably request so that at least one (1) designee of the Pioneer Partnership
shall be a director of the Company at all times while any Preferred Stock or
such Common Stock is held by the Pioneer Partnership or any amounts remain
outstanding under the Debenture.
Section 1.09 Proxies. At any meeting of stockholders, any holder of shares
entitled to vote may designate, in a manner permitted by the laws of the State
of Nevada, another person or persons to act as a proxy or proxies. No proxy is
valid after the expiration of six (6) months from the date of its creation,
unless it is coupled with an interest or unless otherwise specified in the
proxy. In no event shall the term of a proxy exceed seven (7) years from the
date of its creation. Every proxy shall continue in full force and effect until
its expiration or revocation in a manner permitted by the laws of the State of
Nevada.
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Section 1.10 Order of Business. At the annual stockholders meeting, the
regular order of business shall be as follows:
1. Determination of stockholders present and existence of quorum, in
person or by proxy:
2. Reading and approval of the minutes of the previous meeting or
meetings;
3. Reports of the Board of Directors, and, if any, of the president,
treasurer and secretary of the corporation;
4. Reports of committees;
5. Election of directors;
6. Unfinished business;
7. New business;
8. Adjournment.
Section 1. 11 Absentees' Consent to Meetings. Transactions of any meeting
of the stockholders are as valid as though such transaction had taken place at a
meeting duly held after regular call and notice if a quorum is represented,
either in person or by proxy, and if, either before or after the meeting, each
of the persons entitled to vote, not represented in person or by proxy (and
those who, although present, either object at the beginning of the meeting to
the transaction of any business because the meeting has not been lawfully called
or convened or expressly object at the meeting to the consideration of matters
not included in the notice which are legally required to be included therein),
signs a written waiver of notice or consent to the holding of the meeting or an
approval of the minutes thereof. All such waivers, consents and approvals shall
be filed with the corporate records and made a part of the minutes of the
meeting. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except when the person objects at the beginning of the meeting
to the transaction of any business because the meeting is not lawfully called or
convened and except that attendance at a meeting is not a waiver of any right to
object to the consideration of matters not properly included in the notice if
such objection is expressly made at the time any such matters are presented at
the meeting. Neither the business to be transacted at nor the purpose of any
regular or special meeting of stockholders need be specified in any written
waiver of notice or consent, except as otherwise provided in Section 1.04(a) and
(b) of these Bylaws.
Section 1.12 Telephonic Meetings. Stockholders may participate in a meeting
of the stockholders by means of a telephone conference or similar method of
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communication by which all individuals participating in the meeting can hear
each other. Participation in a meeting pursuant to this Section 1.12 constitutes
presence in person at the meeting.
Section 1.13 Action Without Meeting. Except as provided in the Articles of
Incorporation, any action required or permitted to be taken at a meeting of the
stockholders may be taken without a meeting if a written consent thereto is
signed by stockholders holding at least a majority of the voting power, except
that if a different proportion of voting power is required for such an action at
a meeting, then that proportion of written consents is required.
ARTICLE II
DIRECTORS
Section 2.01 Number, Tenure, and Qualifications. Unless a larger number is
required by the laws of the State of Nevada or the Articles of Incorporation or
until changed in the manner provided herein, the Board of Directors of the
Corporation shall consist of at least three (1) individual who shall be elected
at the annual meeting of the stockholders of the corporation and who shall hold
office for one (1) year or until his or her successor or successors are elected
and qualify.
Section 2.02 Change in Number. Subject to any limitations in the laws of
the State of Nevada, the Articles of Incorporation or these Bylaws, the number
of directors may be changed from time to time by resolution adopted by the Board
of Directors or the stockholders.
Section 2.03 Reduction In Number. No reduction of the number of
directors shall have the effect of removing any director prior to the expiration
of his term of office.
Section 2.04 Resignation. Any director may resign effective upon giving
written notice to the chairman of the Board of Directors, the president, the
secretary, or in the absence of all of them, any other officer, unless the
notice specifies a later time for effectiveness of such resignation. A majority
of the remaining directors, though less than a quorum, may appoint a successor
to take office when the resignation becomes effective, and each director so
appointed to hold office during the remainder of the term of office of the
resigning director.
Section 2.05 Removal. Any director may be removed from office by the vote
or written consent of stockholders representing not less than two-thirds of the
voting power of the issued and outstanding stock entitled to vote, except that
if the corporation's Articles of Incorporation provide for the election of
directors by cumulative voting, no director may be removed from office except
upon the vote of
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stockholders owning sufficient shares to have prevented such director's election
to office in the first instance.
Section 2.06 Vacancies. All vacancies, including those caused by an
increase in the number of directors, may be filled by a majority of the
remaining directors, though less than a quorum, unless it is otherwise provided
in the Articles of Incorporation. In the case of the replacement of a director,
the appointed director shall hold office during the remainder of the term of
office of the replaced director, and in the case of an increase in the number of
directors, the appointed director shall hold office until the next meeting of
stockholders at which directors are elected.
Section 2.07 Annual and Regular Meetings. Immediately following the
adjournment of, and at the same place as, the annual or any special meeting of
the stockholders at which directors are elected, other than pursuant to Section
2.06 of this Article, the Board of Directors, including newly elected directors,
shall hold its annual meeting without notice, other than this provision, to
elect officers and to transact such further business as may be necessary or
appropriate. The Board of Directors may provide by resolution the place, date
and hour for holding regular meetings between annual meetings.
Section 2.08 Special Meetings. Special meetings of the Board of Directors
may be called by the chairman, or if there is no chairman, by the president or
secretary, and shall be called by the chairman, the president or the secretary
upon the request of one (1) director. If the chairman refuses or, if there is no
chairman, if both the president and secretary refuse or neglect to call such
special meeting, a special meeting may be called by notice signed by any 1
director.
Section 2.09 Place of Meetings. Any regular or special meeting of the
directors of the corporation may be held at such place as the Board of Directors
may designate or, in the absence of such designation, at the place designated in
the notice calling the meeting.
Section 2.10 Notice of Meetings. Except as otherwise provided in Section
2.07, there shall be delivered to all directors, at least two (2) days before
the time of a meeting, a copy of a written notice of the meeting, by delivery of
such notice personally, by mailing such notice postage prepaid, or by fax. If
mailed, the notice shall be deemed delivered two (2) business days following the
date the same is deposited in the United States mail, postage prepaid. Any
director may waive notice of any meeting, and the attendance of a director at a
meeting and oral consent entered on the Minutes of the meeting or taking part in
deliberations of the meeting without objection shall constitute a waiver of
notice of such meeting. Attendance for the express purpose of objecting to the
transaction of business thereat because the meeting is not properly called or
convened shall not constitute presence nor a waiver of notice for purposes
hereof.
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Section 2.11 Quorum; Adjourned Meetings.
(a) A majority of the directors in office, at a meeting duly assembled, is
necessary to constitute a quorum for the transaction of business.
(b) At any meeting of the Board of Directors where a quorum is not present,
a majority of those present may adjourn, from time to tome, until a quorum is
present, and no notice of such adjournment shall be required. At any adjourned
meeting where a quorum is present, any business may be transacted which could
have been transacted at the meeting originally called.
Section 2.12 Board of Directors' Decisions. Except as otherwise stated
elsewhere in these Bylaws and the Articles, the affirmative vote of a majority
of the directors present at a meeting at which a quorum is present is the act of
the Board of Directors.
Section 2.13 Telephonic Meeting. Members of the Board of Directors or of
any committee designated by the Board of Directors may participate in a meeting
of the Board of Directors or committee by means of a telephone conference or
similar method of communication by which all persons participating in such
meeting can hear each other. Participation in a meeting pursuant to this Section
2.13 constitutes presence in person at the meeting.
Section 2.14 Action Without Meeting. Any action required or permitted to be
taken at a meeting of the Board of Directors or of a committee thereof may be
taken without a meeting if, before or after the action, a written consent
thereto is signed by all of the members of the Board of Directors or the
committee. The written consent may be signed in counterparts and must be filed
with the minutes of the proceedings of the Board of Directors or committee.
Section 2.15 Powers and Duties.
(a) Except as otherwise restricted by Nevada law or the Articles of
Incorporation, the Board of Directors has full control over the affairs of the
corporation. The Board of Directors may delegate any of its authority to manage,
control or conduct the business of the corporation to any standing or special
committee or to any officer or agent and to appoint any persons to be agents of
the corporation with such powers, including the power to subdelegate, and upon
such terms as may be deemed fit.
(b) The Board of Directors may present at annual meetings of the
stockholders, and when called for by a majority vote of the stockholders at an
annual meeting or a special meeting of the stockholders shall present, a full
and clear report of the condition of the corporation to the stockholders.
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(c) The Board of Directors, in its discretion, may submit any contract or
act for approval or ratification at any annual meeting of the stockholders or
any special meeting properly called for the purpose of considering any such
contract or act, provided a quorum is present.
Section 2.16 Compensation. The directors and members of committees shall be
allowed and paid all necessary expenses incurred in attending any meetings of
the Board of Directors or committees. Subject to any limitations contained in
the laws of the State of Nevada, the Articles of Incorporation or any contract
or agreement to which the corporation is a party, directors may receive
compensation for their services as directors as determined by the Board of
Directors, but only during such times as the corporation may legally declare and
pay distributions on its stock, unless the payment of such compensation is first
approved by the stockholders entitled to vote for the election of directors.
Section 2.17 Board of Directors' Officers. At its annual meeting, the Board
of Directors shall elect, from among its members, a chairman who may serve as
the chief executive officer of the corporation and who shall preside at meetings
of the Board of Directors and may preside at meetings of the stockholders. The
Board of Directors may also elect such other officers of the Board of Directors
and for such term as it may from time to time deem advisable.
Section 2.18 Additional Nominees of the Pioneer Partnership on Default. In
the event that (i) this corporation shall default in the due and punctual
payment of any installment of the cumulative dividends on the Preferred Stock
when and as the same shall become due and payable, (ii) such default shall
continue for 30 days and (iii) provided the Pioneer Partnership and/or its
limited partners and affiliates shall be the holder(s) of an aggregate of at
least five (5%) percent of the outstanding Preferred Stock (included in such 5%
calculation for the denominator shall be any Preferred Stock which has then been
converted into Common Stock), in addition to the other remedies available to the
Pioneer Partnership shall have the right to nominate, and the Board of Directors
of this corporation shall use its best efforts to have promptly elected or
appointed such number of individuals nominated by the Pioneer Partnership such
additional number of designees of the Pioneer Partnership as shall be necessary
to ensure that the Pioneer Partnership designees on the Board shall constitute a
simple majority of the Board of Directors. The Pioneer Partnership shall have
the right to continue to appoint a simple majority of the Board of Directors for
so long as as this corporation shall be in default on the payments of the
dividends as described in this Paragraph 2.18.
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ARTICLE III
OFFICERS
Section 3.01 Election. The Board of Directors, at its annual meeting, shall
elect a president, a secretary and a treasurer to hold office for a term of one
(1) year or until their successors are chosen and qualify. Any individual may
hold two or more offices. The Board of Directors may, from time to time, by
resolution, elect one or more vice-presidents, assistant secretaries and
assistant treasurers and appoint agents of the corporation, prescribe their
duties and fix their compensation.
Section 3.02 Removal: Resignation. Any officer or agent elected or
appointed by the Board of Directors may be removed by it only for cause. Any
officer may resign at any time upon written notice to the corporation. Any such
removal or resignation shall be subject to the rights, if any, of the respective
parties under any contract between the corporation and such officer or agent.
Section 3.03 Vacancies. Any vacancy in any office because of death,
resignation, removal or otherwise may be filled by the Board of Directors for
the unexpired portion of the term of such office.
Section 3.04 President.
(a) The president shall be the chief executive or operating officer of the
corporation, subject to the supervision and control of the Board of Directors,
and shall direct the corporate affairs, with full power to execute all
resolutions and orders of the Board of Directors not expressly delegated to some
other officer or agent of the corporation. If the Chairman of the Board of
Directors elects not to preside or is absent, the president shall preside at
meetings of the stockholders and of the Board of Directors and perform such
other duties as shall be prescribed by the Board of Directors.
(b) The president shall have full power and authority on behalf of the
corporation to attend and to act and to vote, or designate such other officer or
agent of the corporation to attend and to act and to vote, at any meetings of
the stockholders of any corporation in which the corporation may hold stock and,
at any such meetings, shall possess and may exercise any and all rights and
powers incident to the ownership of such stock. The Board of Directors, by
resolution from time to time, may confer like powers on any person or persons in
place of the president to exercise such powers for these purposes.
Section 3.05 Vice-Presidents. The Board of Directors may elect one or more
vice-presidents who shall be vested with all the powers and perform all the
duties of the president whenever the president is absent or unable to act and
such other duties as shall be prescribed by the Board of Directors or the
president.
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Section 3.06 Secretary. The secretary shall keep, or cause to be kept, the
minutes of proceedings of the stockholders and the Board of Directors in books
provided for that purpose. The secretary shall attend to the giving and service
of all notices of the corporation, may sign with the president in the name of
the corporation all contracts in which the corporation is authorized to enter,
shall have the custody or designate control of the corporate seal, shall affix
the corporate seal to all certificates of stock duly issued by the corporation,
shall have charge or designate control of stock certificate books, transfer
books and stock ledgers, and such other books and papers as the Board of
Directors or appropriate committee may direct, and shall, in general, perform
all duties incident to the office of the secretary.
Section 3.07 Assistant Secretaries. The Board of Directors may appoint one
or more assistant secretaries who shall have such powers and perform such duties
as may be prescribed by the Board of Directors or the secretary.
Section 3.08 Treasurer. The treasurer shall be the chief financial officer
of the corporation, subject to the supervision and control of the Board of
Directors, and shall have custody of all the funds and securities of the
corporation. When necessary or proper, the treasurer shall endorse on behalf of
the corporation for collection checks, notes and other obligations, and shall
deposit all monies to the credit of the corporation in such bank or banks or
other depository as the Board of Directors may designate, and shall sign all
receipts and vouchers for payments made by the corporation. Unless otherwise
specified by the Board of Directors, the treasurer may sign with the president
all bills of exchange and promissory notes of the corporation, shall also have
the care and custody of the stocks, bonds, certificates, vouchers, evidence of
debts, securities and such other property belonging to the corporation as the
Board of Directors shall designate, and shall sign all papers required by law,
by these Bylaws, or by the Board of Directors to be signed by the treasurer. The
treasurer shall enter, or cause to be entered, regularly in the financial
records of the corporation, to be kept for that purpose, full and accurate
accounts of all monies received and paid on account of the corporation and,
whenever required by the Board of Directors, the treasurer shall render a
statement of any or all accounts. The treasurer shall perform all acts incident
to the position of treasurer subject to the control of the Board of Directors.
The treasurer shall, if required by the Board of Directors, give bond to
the corporation in such sum and with such security as shall be approved by the
Board of Directors for the faithful performance of all the duties of treasurer
and for restoration to the corporation, in the event of the treasurer's death,
resignation, retirement or removal from office, of all books, records, papers,
vouchers, money and other property in the treasurer's custody or control and
belonging to the corporation. The expense of such bond shall be borne by the
corporation.
Section 3.09 Assistant Treasurers. The Board of Directors may appoint one
or
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more assistant treasurers who shall have such powers and perform such duties as
may be prescribed by the Board of Directors or the treasurer. The Board of
Directors may require an assistant treasurer to give a bond to the corporation
in such sum and with such security as it may approve, for the faithful
performance of the duties of assistant treasurer, and for restoration to the
corporation, in the event of the assistant treasurer's death, resignation,
retirement or removal from office, of all books, records, papers, vouchers,
money and other property in the assistant treasurer's custody or control and
belonging to the corporation. The expense of such bond shall be borne by the
corporation.
ARTICLE IV
STOCK
Section 4.01 Issuance. Shares of the corporation's authorized stock shall,
subject to any provisions or limitations of the laws of the State of Nevada, the
Articles of Incorporation or any contracts or agreements to which the
corporation may be a party, be issued in such manner, at such times, upon such
conditions and for such consideration as shall be prescribed by the Board of
Directors.
Section 4.02 Certificates. Ownership in the corporation shall be evidenced
by certificates for shares of stock in such form as shall be prescribed by the
Board of Directors, shall be under the seal of the corporation and shall be
manually signed by the president or a vice-president and also by the secretary
or an assistant secretary; provided, however, whenever any certificate is
countersigned or otherwise authenticated by a transfer agent or transfer clerk,
and by a registrar, then facsimile of the signatures of said officers of the
corporation may be printed or lithographed upon the certificate in lieu of the
actual signatures. Each certificate shall contain the name of the record holder,
the number, designation, if any, class or series of shares represented, a
statement or summary of any applicable rights, preferences, privileges or
restrictions thereon, and a statement, if applicable, that the shares are
assessable. All certificates shall be consecutively numbered. If provided by the
stockholder, the name, address and federal tax identification number of the
stockholder, the number of shares, and the date of issue shall be entered in the
stock transfer records of the corporation.
Section 4.03 Surrendered, Lost or Destroyed Certificates. All certificates
surrendered to the corporation, except those representing shares of treasury
stock, shall be canceled and no new certificate shall be issued until the former
certificate for a like number of shares shall have been canceled, except that in
case of a lost, stolen, destroyed or mutilated certificate, a new one may be
issued therefor. However, any stockholder applying for the issuance of a stock
certificate in lieu of one alleged to have been lost, stolen, destroyed or
mutilated shall, prior to the issuance of a replacement, provide the corporation
with the stockholder's affidavit of the facts surrounding the loss, theft,
destruction or mutilation and, if required by the Board of Directors, an
indemnity
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bond in an amount not less than twice the current market value of the stock, and
upon such terms as the treasurer or the Board of Directors shall require, to
indemnify the corporation against any loss, damage, cost or inconvenience
arising as a consequence of the issuance of a replacement certificate.
Section 4.04 Replacement Certificate. When the Articles of Incorporation
are amended in any way affecting the statements contained in the certificates
for outstanding shares of capital stock of the corporation or it becomes
desirable for any reason, in the discretion of the Board of Directors,
including, without limitation, the merger of the corporation with another
corporation or the reorganization of the corporation, to cancel any outstanding
certificate for shares and issue a new certificate therefor conforming to the
rights of the holder, the Board of Directors may order any holders of
outstanding certificates for shares to surrender and exchange the same for new
certificates within a reasonable time to be fixed by the Board of Directors. The
order may provide that a holder of any certificate(s) ordered to be surrendered
shall not be entitled to vote, receive distributions or exercise any other
rights of stockholders of record until the holder has complied with the order,
but the order operates to suspend such rights only after notice and until
compliance.
Section 4.05 Transfer of Shares. No transfer of stock shall be valid as
against the corporation except on surrender and cancellation of the certificates
therefor accompanied by an assignment or transfer by the registered owner made
either in person or under assignment. Whenever any transfer shall be expressly
made for collateral security and not absolutely, the collateral nature of the
transfer shall be reflected in the entry of transfer in the records of the
corporation.
Section 4.06 Transfer Agent: Registrars. The Board of Directors may appoint
one or more transfer agents, transfer clerk and registrars of transfer and may
require all certificates for shares of stock to bear the signature of such
transfer agent, transfer clerk and/or registrar of transfer.
Section 4.07 Stock Transfer Records. The stock transfer records shall be
closed for a period of at least ten (10) days prior to all meetings of the
stockholders and shall be closed for the payment of distributions as provided in
Article V hereof and during such periods as, from time to time, may be fixed by
the Board of Directors, and, during such periods, no stock shall be transferable
for purposes of Article V and no voting rights shall be deemed transferred
during such periods. Subject to the forgoing limitations, nothing contained
herein shall cause transfers during such periods to be void or voidable.
Section 4.08 Miscellaneous. The Board of Directors shall have the power and
authority to make such rules and regulations not inconsistent herewith as it may
deem expedient concerning the issue, transfer and registration of certificates
for shares of the corporation's stock.
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ARTICLE V
DISTRIBUTIONS
Section 5.01 Distributions may be declared, subject to the provisions of
the laws of the State of Nevada and the Articles of Incorporation, by the Board
of Directors at any regular or special meeting and may be paid in cash,
property, shares of corporate stock or any other medium. The Board of Directors
may fix in advance a record date, as provided in Section 1.06, prior to the
distribution for the purpose of determining stockholders entitled to receive any
distribution. The Board of Directors may close the stock transfer books for such
purpose for a period of not more than ten (10) days prior to the date of such
distribution.
ARTICLE VI
RECORDS; REPORTS; SEAL; AND FINANCIAL MATTERS
Section 6.01 Records. All original records of the corporation shall be kept
by or under the direction of the secretary or at such places as may be
prescribed by the Board of Directors.
Section 6.02 Directors' and Officers' Right of Inspection. Every director
and officer shall have the absolute right at any reasonable time for a purpose
reasonably related to the exercise of such individual's duties to inspect and
copy all of the corporation's books, records and documents of every kind and to
inspect the physical properties of the corporation and its subsidiary
corporations. Such inspection may be made in person or by agent or attorney.
Section 6.03 Corporate Seal. The Board of Directors may, by resolution,
authorize a seal, and the seal may be used by causing it, or a facsimile, to be
impressed or affixed or reproduced or otherwise. Except when otherwise
specifically provided herein, any officer of the corporation shall have the
authority to affix the seal to any document requiring it.
Section 6.04 Fiscal Year-End. The fiscal year-end of the corporation shall
be such date as may be fixed from time to time by resolution of the Board of
Directors.
Section 6.05 Reserves. The Board of Directors may create, by resolution,
such reserves as the directors may, from time to time, in their discretion,
think proper to provide for contingencies, or to equalize distributions or to
repair or maintain any property of the corporation, or for such other purpose as
the Board of Directors may deem beneficial to the corporation, and the directors
may modify or abolish any such reserves in the manner in which they were
created.
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ARTICLE VII
INDEMNIFICATION
Section 7.01 Civil and Criminal Action. This corporation shall indemnify
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, except an action by or in the right
of the corporation, by reason of the fact that he is or was an officer or
director, and this corporation may, in the discretion of the board of directors,
indemnify any person who was or is an employee or agent of this corporation, or
is or was serving at the request of this corporation as director, officer,
employee or agent of another corporation, against expenses, including attorneys'
fees, judgment, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with the action, suit or proceeding if he acted in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of this corporation, and, with respect to a criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
does not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interest of this corporation, and that, with respect to any criminal
action or proceeding, he had reasonable cause to believe that his conduct was
unlawful.
Section 7.02 Derivative Suits. This corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of this corporation to
procure a judgment in its favor by reason of the fact that he is or was an
officer or director, and this corporation may, in the discretion of the board of
directors, indemnify any person who was or is an employee or agent of this
corporation, or is or was serving at the request of this corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the actions or suit if he acted in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of this corporation. Indemnification may not be made for
any claim, issue or matter as to which such a person has been adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to this corporation or for amounts paid in settlement to this
corporation, unless and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper.
Section 7.03 Success On Merits. To the extent that a director, officer,
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employee or agent of this corporation entitled to, or otherwise granted,
indemnification has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in sections 1 and 2, or in defense of any
claim, issue or matter therein, he must be indemnified by this Corporation
against expenses, including attorneys' fees, actually and reasonably incurred by
him in connection with the defense.
Section 7.04 Decision On Indemnification. Any indemnification under
sections 7.01 and 7.02, unless ordered by a court or advanced pursuant to
section 7.05 below, must be made by this corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances. The determination
must be made:
(a) By the stockholders;
(b) By the Board of Directors by majority vote of a quorum consisting of
directors who were not parties to the act, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who were not
parties to the act, suit or proceeding so orders, by independent legal counsel
in a written opinion; or
(d) If a quorum consisting of directors who were not parties to the act,
suit or proceeding cannot be obtained, by independent legal counsel in a written
opinion.
Section 7.05 Expenses. The expenses of officers and directors incurred in
defending a civil or criminal action, suit or proceeding shall be paid by this
corporation as they are incurred and in advance of the final disposition of the
action, suit or proceeding, upon receipt of an undertaking by or on behalf of
the director or officer to repay the amount if it is ultimately determined by a
court of competent jurisdiction that he is not entitled to be indemnified by
this corporation. The provisions of this subsection do not affect any rights to
advancement of expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law.
Section 7.06 Other Rights; Continuation. The indemnification and
advancement of expenses authorized in or ordered by a court pursuant to this
Article VII:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the Articles of
Incorporation or any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, for either an action in his official capacity or an
action in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to section 7.02 above or for
the advancement of expenses made pursuant to section 7.05
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above, may not be made to or on behalf of any director or officer if a final
adjudication establishes that his acts or omissions involved intentional
misconduct, fraud or a knowing violation of the law and was material to the
cause of action.
(b) Continues for a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE VIII
AMENDMENT OR REPEAL
Section 8.01 Amendment. Except as otherwise restricted in the Articles of
Incorporation or these Bylaws:
(a) Any provision of these Bylaws may be altered, amended or repealed at
the annual or any regular meeting of the Board of Directors without prior
notice, or at any special meeting of the Board of Directors if notice of such
alteration, amendment or repeal is contained in the notice of such special
meeting.
(b) These Bylaws may also be altered, amended, or repealed by the
stockholders. The stockholders may provide by resolution that any Bylaw
provision repealed, amended, adopted or altered by them may not be repealed,
amended, adopted or altered by the Board of Directors.
ARTICLE IX
CONFLICT WITH ARTICLES OF INCORPORATION
Section 9.01. Conflict . Whenever these Bylaws or any amendments hereto are
in conflict with the Articles of Incorporation or any amendments thereto, the
Articles of Incorporation or any amendments thereto shall control.
CERTIFIED TO BE THE BYLAWS OF:
AMERICA'S SHOPPING MALL, INC.
BY: /s/ Robert Trause
------------------------
Robert Trause, Secretary
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