AMENDED AND RESTATED BYLAWS
OF
SMITHWAY MOTOR XPRESS CORP.
(as in effect on March 5, 2004)
ARTICLE I
OFFICES
1. Principal Office. The principal office of the Corporation shall be in
Washoe County, Nevada, which initially shall be its known place of business.
2. Other Offices. The Corporation may also have offices at such other
places both within and without the State of Nevada as the Board of Directors may
from time to to time determine or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
1. Annual Meeting. The annual meeting of the stockholders shall be held at
such date and time as the Board of Directors shall determine, for the purpose of
electing Directors and for the transaction of such other business as may
properly come before the meeting.
2. Special Meetings. Special meetings of the stockholders may be called for
any purpose or purposes at any time by a majority of the Board of Directors or
the President.
3. Place of Meetings. Annual and special meetings of the stockholders may
be held at such time and place within or without the State of Nevada as shall be
stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
4. Notice of Meeting. Written notice stating the place, date and hour of
the meeting and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered to each stockholder of record
entitled to vote at such meeting not less than ten (10) nor more than sixty (60)
days before the date of the meeting. Notice may be delivered either personally
or by first class, certified or registered mail, postage prepaid, and signed by
an officer of the Corporation at the direction of the person or persons calling
the meeting. If mailed, notice shall be deemed to be delivered when mailed to
the stockholder at his or her address as it appears on the stock transfer books
of the Corporation. Delivery of any such notice to any officer of a corporation
or association, or to any member of a partnership shall constitute delivery of
such notice to such corporation, association or partnership. In the event of the
transfer of stock after delivery or mailing of the notice of and prior to the
holding of the meeting it shall not be necessary to deliver or mail notice of
the meeting to the transferee. Notice need not be given of an adjourned meeting
if the time and place thereof are announced at the meeting at which the
adjournment is taken, provided that such adjournment is for less than thirty
(30) days and further provided that a new record date is not fixed for the
adjourned meeting, in either of which events, written notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at such
meeting. At any adjourned meeting, any business may be transacted which might
have been transacted at the meeting as originally noticed. A written waiver of
notice, whether given, before or after the meeting to which it relates, shall be
equivalent to the giving of notice of such meeting to the stockholder or
stockholders signing such waiver. Attendance of a stockholder at a meeting shall
constitute a waiver of notice of such meeting, except when the stockholder
attends for the express purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened.
5. Fixing Date for Determination of Stockholders Record. In order that the
Corporation may determine the stockholders entitled to notice of and to vote at
any meeting of stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or to receive payment of any
dividend or other distribution or allotment of any rights, or to exercise any
rights in respect of any other change, conversion or exchange of stock or for
the purpose of any other lawful action, the Board of Directors may fix in
advance a record date, which shall not be more than sixty (60) nor less than ten
(10) days prior to the date of such meeting or such action, as the case may be.
If the Board of Directors has not fixed a record date for determining the
stockholders entitled to notice of and to vote at a meeting of stockholders, the
record date shall be at the close of business on the day next preceding the day
on which the notice is given, or if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held. If the Board of
Directors has not fixed a record date for determining the stockholders entitled
to express consent to corporate action in writing without a meeting, when no
prior action by the Board of Directors is necessary, the record date shall be
the day on which the first written consent is expressed by any stockholder. If
the Board of Directors has not fixed a record date for determining stockholders
for any other purpose, the record date 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 a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
6. Record of Stockholders. The Secretary or other officer having charge of
the stock transfer books of the Corporation shall make, or cause to be made, at
least ten (10) days before every meeting of stockholders, a complete record of
the stockholders entitled to vote at a meeting of stockholders or any
adjournment thereof, arranged in alphabetical order, with the address of and the
number of shares registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days
prior to the meeting, either at a place specified in the notice of the meeting
or if not so specified, at the Corporation's principal place of business. The
list shall also be produced and kept at the time and place of the meeting during
the whole time thereof and may be inspected by any stockholder who is present.
7. Quorum and Manner of Acting. At any meeting of the stockholders, the
presence, in person or by proxy, of the holders of a majority of the outstanding
stock
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entitled to vote shall constitute a quorum for the transaction of business
except as otherwise provided by the Nevada General Corporation Law or by the
Articles of Incorporation of the Corporation, as amended form time to time (the
"Articles of Incorporation"). All shares represented and entitled to vote on any
single subject matter which may be brought before the meeting shall be counted
for quorum purposes. Only those shares entitled to vote on a particular subject
matter shall be counted for the purpose of voting on that subject matter.
Business may be conducted once a quorum is present and may continue to be
conducted until adjournment sine die, notwithstanding the withdrawal or
temporary absence of stockholders leaving less than a quorum. Except as
otherwise provided in the Nevada General Corporation Law or the Articles of
Incorporation, the affirmative vote of the holders of a majority of the shares
of stock then represented at the meeting and entitled to vote thereat shall be
the act of the stockholders; provided, however, that if the shares of stock so
represented are less than the number required to constitute a quorum, the
affirmative vote must be such as would constitute a majority if a quorum were
present, except that the affirmative vote of the holders of a majority of the
shares of stock then present is sufficient in all cases to adjourn a meeting.
8. Voting of Shares of Stock. Each stockholder shall be entitled to the
number of votes (or corresponding fraction thereof) authorized for shares of
such class or series in the Corporation's Articles of Incorporation or any
certificate of designation for such class or series for each share of stock (or
fraction thereof) standing in his, her or its name on the books of the
Corporation on the record date. A stockholder may vote either in person or by
valid proxy, as defined in Section 12 of this Article II, executed in writing by
the stockholder or by his, her or its duly authorized attorney in fact. Shares
of its own stock belonging to the Corporation or to another corporation, if a
majority of the shares entitled to vote in the election of directors of such
other corporation is held, directly or indirectly, by the Corporation, shall
neither be entitled to vote nor counted for quorum purposes; provided, however,
that the foregoing shall not limit the right of any corporation to vote stock,
including but not limited to its own stock, when held by it in a fiduciary
capacity. Shares of stock standing in the name of another corporation may be
voted by such officer, agent or proxy as the bylaws of such other corporation
may prescribe or, in the absence of such provision, as the Board of Directors of
such other corporation may determine. Unless demanded by a stockholder present
in person or by proxy at any meeting of the stockholders and entitled to vote
thereat, or unless so directed by the chairman of the meeting, the vote thereat
on any question need not be by ballot. If such demand or direction is made, a
vote by ballot shall be taken, and each ballot shall be signed by the
stockholder voting, or by his or her proxy, and shall state the number of shares
voted.
9. Organization. At each meeting of the stockholders, the President, or if
he or she is absent therefrom, one of the Vice Presidents or, if all are absent
therefrom, another officer of the Corporation chosen as chairman of such meeting
by stockholders holding a majority of the shares present in person or by proxy
and entitled to vote thereat, or, if all the officers of the Corporation are
absent therefrom, a stockholder of record so chosen, shall act as chairman of
the meeting and preside thereat. The Secretary, or, if he or she is absent from
the meeting or is required pursuant to the provisions of this Section 9 to act
as chairman of such meeting, the person (who shall be an Assistant Secretary, if
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any and if present) whom the chairman of the meeting shall appoint shall act as
secretary of the meeting and keep the minutes thereof.
10. Order of Business. The order of business at each meeting of the
stockholders shall be determined by the chairman of such meeting, but the order
of business may be changed by the vote of stockholders holding a majority of the
shares present in person or by proxy at such meeting and entitled to vote
thereat.
11. Voting. At all meetings of stockholders, each stockholder entitled to
vote thereat shall have the right to vote, in person or by proxy, and shall
have, for each share of stock registered in his, her or its name, the number of
votes provided by the Articles of Incorporation or any certificate of
designation in respect of stock of such class or series. Stockholders shall not
have cumulative voting rights with respect to the election of Directors or for
any other purpose.
12. Voting by Proxy. At any meeting of the stockholders, any stockholder
may be represented and vote by a proxy or proxies appointed by an instrument in
writing. In the event that any such instrument in writing shall designate two
(2) or more persons to act as proxies, a majority of such persons present at the
meeting, or, if only one shall be present, then that one shall have and may
exercise all of the powers conferred by such written instrument upon all of the
persons so designated unless the instrument shall otherwise provide. No such
proxy shall be valid after the expiration of six (6) months from the date of its
execution, unless coupled with an interest or unless the person executing it
specifies therein the length of time for which it is to continue in force, which
in no case shall exceed seven (7) years from the date of its execution. Subject
to the above, any proxy duly executed is not revoked and continues in full force
and effect until an instrument revoking it or a duly executed proxy bearing a
later date is filed with the Secretary of the Corporation.
13. Action by Stockholders Without a Meeting. Unless otherwise restricted
by the Articles of Incorporation or these Bylaws, any action required or
permitted to be taken at a meeting of the stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, is signed by 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) and such consent is filed with the minutes of the
proceedings of the stockholders.
14. Irregularities. All information and/or irregularities in calls, notices
of meetings and in the manner of voting, form of proxies, credentials, and
method of ascertaining those present, shall be deemed waived if no objection is
made at the meeting or if waived in writing.
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ARTICLE III
BOARD OF DIRECTORS
1. General Powers. The property, business and affairs of the Corporation
shall be managed by the Board of Directors, which shall be lead by a Chairman of
the Board who shall preside at all meetings of the Board of Directors and shall
perform such other duties as from time to time may be assigned to him or her by
the Board of Directors.
2. Number, Term of Office and Qualifications. Subject to the requirements
of the Nevada General Corporation Law or the Articles of Incorporation, the
Board of Directors may from time to time determine the number of Directors.
Until the Board of Directors shall otherwise determine, the number of Directors
shall be as set forth in the Corporation's Articles of Incorporation. Each
director shall hold office until his or her successor is duly elected or until
his or her earlier death or resignation or removal in the manner hereinafter
provided. Directors need not be stockholders.
3. Place of Meeting. The Board of Directors may hold its meetings, either
within or without the State of Nevada, at such place or places as it may from
time to time by resolution determine or as shall be designated in any notices or
waivers of notice thereof. Any such meeting, whether regular or special, may be
held by conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting in such manner shall constitute presence in person at
such meeting.
4. Annual Meetings. As soon as practicable after each annual election of
Directors and on the same day, the Board of Directors shall meet for the purpose
of organization and the transaction of other business at the place where regular
meetings of the Board of Directors are held, and no notice of such meeting shall
be necessary in order to legally hold the meeting, provided that a quorum is
present. If such meeting is not held as provided above, the meeting may be held
at such time and place as shall be specified in a notice given as hereinafter
provided for a special meeting of the Board of Directors, or in the event of
waiver of notice as specified in the written waiver of notice.
5. Regular Meetings. Regular meetings of the Board of Directors may be held
without notice at such times as the Board of Directors shall from time to time
by resolution determine.
6. Special Meetings; Notice. Special meetings of the Board of Directors
shall be held, either within or without the State of Nevada, whenever called by
the Chairman of the Board, or by the President or a majority of the Directors at
the time in office. Notice shall be given, in the manner hereinafter provided,
of each such special meeting, which notice shall state the time and place of
such meeting, but need not state the purposes thereof. Except as otherwise
provided in Section 9 of this Article III, notice of each such meeting shall be
mailed to each Director, addressed to him or her at his or her residence or
usual place of business, at least two (2) days before the day on which such
meeting is to be held, or shall be sent addressed to him or her at such place by
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telegraph, cable, wireless or other form of recorded communication or delivered
personally or by telephone not later than the day before the day on which such
meeting is to be held. A written waiver of notice, whether given before or after
the meeting to which it relates, shall be equivalent to the giving of notice of
such meeting to the Director or Directors signing such waiver. Attendance of a
Director at a special meeting of the Board of Directors shall constitute a
waiver of notice of such meeting, except when he or she attends the meeting for
the express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened.
7. Quorum and Manner of Acting. A majority of the whole Board of Directors
shall be present in person at any meeting of the Board of Directors in order to
constitute a quorum for the transaction of business at such meeting, and except
as otherwise specified in these Bylaws, and except also as otherwise expressly
provided by the Nevada General Corporation Law, the vote of a majority of the
Directors present at any such meeting at which a quorum is present shall be the
act of the Board of Directors. In the absence of a quorum from any such meeting,
a majority of the Directors present thereat may adjourn such meeting from time
to time to another time or place, without notice other than announcement at the
meeting, until a quorum shall be present thereat. The Directors shall act only
as a Board of Directors and the individual Directors shall have no power as
such.
8. Organization. At each meeting of the Board of Directors, the Chairman of
the Board, or, if he or she is absent therefrom or if no Chairman is appointed,
the President, or if he or she is absent therefrom, a Director chosen by a
majority of the Directors present thereat, shall act as chairman of such meeting
and preside thereat. The Secretary, or if he or she is absent, the person (who
shall be an Assistant Secretary, if any and if present) whom the chairman of
such meeting shall appoint, shall act as Secretary of such meeting and keep the
minutes thereof.
9. Action by Directors Without a Meeting. Unless otherwise restricted by
the Articles of Incorporation or these Bylaws, any action required or permitted
to be taken at a meeting of the Board of Directors may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, is signed by all Directors and such consent
is filed with the minutes of the proceedings of the Board of Directors.
10. Resignations. Any Director may resign at any time by giving written
notice of his or her resignation to the Corporation. Any such resignation shall
take effect at the time specified therein, or if the time when it shall become
effective is not specified therein, it shall take effect immediately upon its
receipt by the Chairman of the Board, the President or the Secretary; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
11. Vacancies. Vacancies and newly created directorships resulting from any
increase in the authorized number of Directors elected by all of the
stockholders having the right to vote as a single class may be filled by a
majority of the Directors then office, although less than a quorum, or by a sole
remaining Director. If at any time, by reason of
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death or resignation or other cause, the Corporation has no Directors in office,
then any officer or any stockholder or an executor, administrator, trustee or
guardian of a stockholder, may call a special meeting of stockholders for the
purpose of filling vacancies in the Board of Directors. If one or more Directors
shall resign from the Board of Directors, effective at a future date, a majority
of the Directors then in office, including those who have so resigned, shall
have the power to fill such vacancy or vacancies, the vote thereon to take
effect when such resignation or resignations shall become effective, and each
Director so chosen shall hold office as provided in this section in the filling
of other vacancies.
12. Compensation. The Board of Directors may at any time and from time to
time by resolution provide that the Directors may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
Director or both, in either case payable in cash, the Corporation's stock, or
such other form designated by the Board of Directors. In addition, the Board of
Directors may at any time and from time to time by resolution provide that
Directors shall be paid their actual expenses, if any, of attendance at each
meeting of the Board of Directors. Nothing in this section shall be construed as
precluding any Director from serving the Corporation in any other capacity and
receiving compensation therefor, but the Board of Directors may by resolution
provide that any Director receiving compensation for his or her services to the
Corporation in any other capacity shall not receive additional compensation for
his or her services as a Director.
ARTICLE IV
OFFICERS
1. Number. The Corporation shall have the following officers: a President,
a Vice President, a Secretary and a Treasurer. At the discretion of the Board of
Directors, the Corporation may also have additional Vice Presidents, one or more
Assistant Vice Presidents, one or more Assistant Secretaries and one or more
Assistant Treasurers.
2. Election and Term of Office. The officers of the Corporation shall be
elected annually by the Board of Directors or at a special meeting of the Board
of Directors called for that purpose. Each such officer shall hold office until
his or her successor is duly elected or until his or her earlier death or
resignation or removal in the manner hereinafter provided.
3. Agents. In addition to the officers mentioned in Section 1 of this
Article IV, the Board of Directors may appoint such agents as the Board of
Directors may deem necessary or advisable, each of which agents shall 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 to any committee the power to appoint or remove any
such agents.
4. Removal. Any officer may be removed, with or without cause, at any time
by resolution adopted by a majority of the whole Board of Directors.
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5. Resignations. Any officer may resign at any time by giving written
notice of his or her resignation to the Board of Directors, the President or the
Secretary. Any such resignation shall take effect at the times specified
therein, or, if the time when it shall became effective is not specified
therein, it shall take effect immediately upon its receipt by the Board of
Directors, the President or the Secretary; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
6. Vacancies. A vacancy in any office due to death, resignation, removal,
disqualification or any other cause may be filled for the unexpired portion of
the term thereof by the Board of Directors.
7. President. The President shall be the chief executive officer of the
Corporation and shall have, subject to the control of the Board of Directors,
general and active supervision and direction over the business and affairs of
the Corporation and over its several officers. The President shall: (a) preside
at all meetings of the stockholders; (b) make a report of the state of the
business of the Corporation at each annual meeting of the stockholders; (c) see
that all orders and resolutions of the Board of Directors are carried into
effect; (d) have the right to sign, execute and deliver in the name of the
Corporation all deeds, mortgages, bonds, contracts or other instruments
authorized by the Board of Directors, except in cases where the signing,
execution or delivery thereof is expressly delegated by the Board of Directors
or by these Bylaws to some other officer or agent of the Corporation or where
any of them are required by law otherwise to be signed, executed or delivered;
and (e) have the right to cause the corporate seal, if any, to be affixed to any
instrument which requires it. The President also may sign, with the Secretary or
an Assistant Secretary, certificates of stock of the Corporation. In general,
the President shall perform all duties incident to the office of the President
and such other duties as from time to time may be assigned to him or her by the
Board of Directors.
8. Vice President. The Vice President and any additional Vice Presidents
shall have such powers and perform such duties as the President or the Board of
Directors may from time to time prescribe and shall perform such other duties as
may be prescribed by these Bylaws. At the request of the President, or in case
of his or her absence or inability to act, a Vice President so designated by the
Board of Directors, a Vice President shall perform the duties of the President
and, when so acting, shall have all the powers of, and be subject to all the
restrictions upon, the President.
9. Secretary. The Secretary shall: (a) record all the proceedings of the
meetings of the stockholders, the Board of Directors and the committees of the
Board of Directors, if any, in one or more books kept for that purpose; (b) see
that all notices are duly given in accordance with the provisions of these
Bylaws or as required by law; (c) be the custodian of all contracts, deeds,
documents, all other indicia of title to properties owned by the Corporation and
of its other corporate records (except accounting records) and of the corporate
seal, if any, and affix such seal to all documents the execution of which on
behalf of the Corporation under its seal is authorized and required; (d) sign,
if directed by the Board of Directors, with the President or a Vice President,
certificates for stock of the Corporation; (e) have charge, directly or through
the transfer clerk or transfer
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clerks, transfer agent or transfer agents and registrar or registrars appointed
as provided in Section 3 of Article VII of these Bylaws, of the issue, transfer
and registration of certificates for stock of the Corporation and of the records
thereof, such records to be kept in such manner as to show at any time the
amount of the stock of the Corporation issued and outstanding, the manner in
which and the time when such stock was paid for, the names, alphabetically
arranged, and the addresses of the holders of record thereof, the number of
shares held by each, and the time when each became a holder of record; (f) upon
request, exhibit or cause to be exhibited at all reasonable times to any
Director such records of the issue, transfer and registration of the
certificates for stock of the Corporation; (g) see that the books, reports,
statements, certificates and all other documents and records required by law arc
properly kept and filed; and (h) see that the duties prescribed by Section 6 of
Article II of these Bylaws are performed. In general, the Secretary shall
perform all duties incident to the office of Secretary and such other duties as
from time to time may be assigned to him or her by the President or the Board of
Directors.
10. Treasurer. If required by the Board of Directors, the Treasurer shall
give a bond for the faithful discharge of his or her duties in such sum and with
such surety or sureties as the Board of Directors shall determine. The Treasurer
shall: (a) have charge and custody of, and be responsible for, all funds,
securities, notes and valuable effects of the Corporation; (b) receive and give
receipt for monies due and payable to the Corporation from any sources
whatsoever; (c) deposit all such monies to the credit of the Corporation or
otherwise as the Board of Directors or the President shall direct in such banks,
trust companies or other depositories as shall be selected in accordance with
the provisions of Article VI of these Bylaws; (d) cause such funds to be
disbursed by checks or drafts on the authorized depositories of the Corporation
signed as provided in Article VI of these Bylaws; (e) be responsible for the
accuracy of the amounts of, and cause to be preserved proper vouchers for, all
monies so disbursed; (f) have the right to require from time to time reports or
statements giving such information as he or she may desire with respect to any
and all financial transactions of the Corporation from the officers or agents
transacting the same; (g) render to the President or the Board of Directors,
whenever they, respectively, shall request him or her so to do, an account of
the financial condition of the Corporation and of all his or her transactions as
Treasurer; (h) sign, if directed by the Board of Directors, with the President
or a Vice President, certificates for stock of the Corporation; and (i) upon
request, exhibit or cause to be exhibited at all reasonable times the cash books
and other records to the President or any of the Directors of the Corporation.
In general, the Treasurer shall perform all duties incident to the office of
Treasurer and such other duties as from time to time may be assigned to him or
her by the President or the Board of Directors.
11. Assistant Officers. Any persons elected as assistant officers shall
assist in the performance of the duties of the designated office and such other
duties as shall be assigned to them by any Vice President, the Secretary or the
Treasurer, as the case may be, or by the Board of Directors or the President.
12. Combination of Offices. Any two of the offices hereinabove enumerated
may be held by one and the same person, if such person is so elected or
appointed.
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13. Compensation. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors, and no officer shall be
prevented from receiving such salary by reason of the fact that he is also a
Director of the Corporation.
ARTICLE V
COMMITTEES
1. Executive Committee; How Constituted and Powers. The Board of Directors,
by resolution adopted by a majority of the whole Board of Directors, may
designate one or more of the Directors then in office to constitute an Executive
Committee, which shall have and may exercise between meetings of the Board of
Directors all the delegable powers of the Board of Directors to the extent not
expressly prohibited by the Nevada General Corporation Law or by resolution of
the Board of Directors. The Board of Directors may designate one or more
Directors as alternate members of the Committee who may replace any absent or
disqualified member at any meeting of the Committee. Each member of the
Executive Committee shall continue to be a member thereof only during the
pleasure of a majority of the whole Board of Directors.
2. Executive Committee; Organization. The Executive Committee may appoint a
member of the Committee to act as chairman at all meetings of the Committee and
the Secretary shall act as secretary thereof. In case of the absence from any
meeting of the appointed chairman or the Secretary, the Committee may appoint a
chairman or secretary, as the case may be, of the meeting.
3. Executive Committee; Meetings. Regular meetings of the Executive
Committee may be held without notice on such days and at such places as shall be
fixed by resolution adopted by a majority of the Committee and communicated to
all its members. Special meetings of the Committee shall be held whenever called
by a majority of the members thereof then in office. Notice of each special
meeting of the Committee shall be given in the manner provided in Section 6 of
Article III of these Bylaws for special meetings of the Board of Directors.
Notice of any such meeting of the Executive Committee, however, need not be
given to any member of the Committee if waived by him or her in writing or by
telegraph, cable, wireless or other form of recorded communication either before
or after the meeting, or if he or she is present at such meeting, except when he
or she attends for the express purpose of objecting to the transaction of any
business because the meeting is not lawfully called or convened. Subject to the
provisions of this Article V, the Committee, by resolution adopted by a majority
of the whole Committee, shall fix its own rules of procedure and it shall keep a
record of its proceedings and report them to the Board of Directors at the next
regular meeting thereof after such proceedings have been taken. All such
proceedings shall be subject to revision or alteration by the Board of
Directors; provided, however, that third parties shall not be prejudiced by any
such revision or alteration.
4. Executive Committee; Quorum and Manner of Acting. A majority of the
Executive Committee shall constitute a quorum for the transaction of business,
and, except as specified in Section 3 of this Article V, the act of a majority
of those present at
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a meeting thereof at which a quorum is present shall be the act of the
Committee. The members of the Committee shall act only as a committee, and the
individual members shall have no power as such.
5. Other Committees. The Board of Directors, by resolution adopted by a
majority of the whole Board, may constitute other committees, which shall in
each case consist of one or more of the Directors and, at the discretion of the
Board of Directors, such officers who are not Directors. The Board of Directors
may designate one or more Directors or officers who are not Directors as
alternate members of any committee who may replace any absent or disqualified
member at any meeting of the committee. Each such committee shall have and may
exercise such powers as the Board of Directors may determine and specify in the
respective resolutions appointing them: provided, however, that (a) unless all
of the members of any committee shall be Directors, such committee shall not
have authority to exercise any of the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and (b) if any
committee shall have the power to determine the amounts of the respective fixed
salaries of the officers of the Corporation or any of them, such committee shall
consist of not less then three (3) members and none of its members shall have
any vote in the determination of the amount that shall be paid to him or her as
a fixed salary. A majority of all the members of any such committee may fix its
rules of procedure, determine its action and fix the time and place of its
meetings and specify what notice thereof, if any, shall be given, unless the
Board of Directors shall otherwise by resolution provide.
6. Committee Minutes. The Executive Committee and any other committee shall
keep regular minutes of their proceedings and report the same to the Board of
Directors when required.
7. Action by Committees Without a Meeting. Any action required or permitted
to be taken at a meeting of the Executive Committee or any other committee of
the Board of Directors may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken, is
signed by all members of the committee and such consent is filed with the
minutes of the proceedings of the committee.
8. Resignations. Any member of the Executive Committee or any other
committee may resign therefrom at any time by giving written notice of his or
her resignation to the Chairman of the Board, the President or the Secretary.
Any such resignation shall take effect at the time specified therein, or if the
time when it shall become effective is not specified therein, it shall take
effect immediately upon its receipt by the Chairman of the Board, the President
or the Secretary; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
9. Vacancies. Any vacancy in the Executive Committee or any other committee
shall be filled by the vote of a majority of the whole Board of Directors.
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10. Compensation. The Board of Directors may at any time and from time to
time by resolution provide that committee members shall be paid a fixed sum for
attendance at each committee meeting or a stated salary as a committee member in
either case payable in cash, the Corporation stock, or such other form
designated by the Board of Directors. In addition, the Board of Directors may at
any time and from time to time by resolution provide that such committee members
shall be paid their actual expenses, if any, of attendance at each committee
meeting. Nothing in this section shall be construed as precluding any committee
member from serving the Corporation in any other capacity and receiving
compensation therefor, but the Board of Directors may by resolution provide that
any committee member receiving compensation for his or her services to the
Corporation in any other capacity shall not receive additional compensation for
his or her services as a committee member.
11. Dissolution of Committees; Removal of Committee Members. The Board of
Directors, by resolution adopted by a majority of the whole Board, may, with or
without cause, dissolve the Executive Committee or any other committee, and,
with or without cause, remove any member thereof.
ARTICLE VI
MISCELLANEOUS
1. Execution of Contracts. Except as otherwise required by law or by these
Bylaws, any contract or other instrument may be executed and delivered in the
name of the Corporation and on its behalf by the President or any Vice
President. In addition, the Board of Directors may authorize any other officer
or officers or agent or agents to execute and deliver any contract or other
instrument in the name of the Corporation and on its behalf, and such authority
may be general or confined to specific instances as the Board of Directors may
by resolution determine.
2. Attestation. Any Vice President, the Secretary, or any Assistant
Secretary may attest the execution of any instrument or document by the
President or any other duly authorized officer or agent of the Corporation and
may affix the corporate seal, if any, in witness thereof, but neither such
attestation nor the affixing of a corporate seal shall be requisite to the
validity of any such document or instrument.
3. Checks, Drafts. All checks, draft, orders for the payment of money,
bills of lading, warehouse receipts, obligations, bills of exchange and
insurance certificates shall be signed or endorsed (except endorsements for
collection for the account of the Corporation or for deposit to its credit,
which shall be governed by the provisions of Section 4 of this Article VI) by
such officer or officers or agent or agents of the Corporation and in such
manner as shall from time to time be determined by resolution of the Board of
Directors.
4. Deposits. All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation or otherwise as the
Board of Directors or the President shall direct in general or special accounts
at such banks, trust companies, savings and loan associations, or other
depositories as the Board of Directors
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may select or as may be selected by any officer or officers or agent or agents
of the Corporation to whom power in that respect has been delegated by the Board
of Directors. For the purpose of deposit and for the purpose of collection for
the account of the Corporation, checks, drafts and other orders for the payment
of money which are payable to the order of the Corporation may be endorsed,
assigned and delivered by any officer or agent of the Corporation. The Board of
Directors may make such special rules and regulations with respect to such
accounts, not inconsistent with the provisions of these Bylaws, as it may deem
expedient.
5. Proxies in Respect of Stock or Other Securities of Other Corporations.
Unless otherwise provided by resolution adopted by the Board of Directors, the
President or any Vice President may exercise in the name and on behalf of the
Corporation the powers and rights which the Corporation may have as the holder
of stock or other securities in any other corporation, including without
limitation the right to vote or consent with respect to such stock or other
securities.
6. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors, and may thereafter be changed from time to
time by action of the Board of Directors. Initially, the fiscal year shall begin
on January 1 and end on December 31.
ARTICLE VII
STOCK
1. Certificates. Every holder of stock in the Corporation shall be entitled
to have a certificate signed by or in the name of the Corporation by the
President or a Vice President and by the Treasurer, Secretary or an Assistant
Treasurer or Assistant Secretary. The signatures of such officers upon such
certificate may be facsimiles if the certificate is manually signed by a
transfer agent or registered by a registrar, other than the Corporation itself
or one of its employees. If any officer who has signed or whose facsimile
signature has been placed upon a certificate has ceased for any reason to be
such officer prior to issuance of the certificate, the certificate may be issued
with the same effect as if that person were such officer at the date of issue.
All certificates for stock of the Corporation shall be consecutively numbered,
shall state the number of shares represented thereby and shall otherwise be in
such form as shall be determined by the Board of Directors, subject to such
requirements as are imposed by the Nevada General Corporation Law. The names and
addresses of the persons to whom the shares represented by certificates are
issued shall be entered on the stock transfer books of the Corporation, together
with the number of shares and the date of issue, and in the case of
cancellation, the date of cancellation. Certificates surrendered to the
Corporation for transfer shall be cancelled, and no new certificate shall be
issued in exchange for such shares until the original certificate has been
cancelled; except that in the case of a lost, stolen, destroyed or mutilated
certificate, a new certificate may be issued therefor upon such terms and
indemnity to the Corporation as the Board of Directors may prescribe.
2. Transfer of Stock. Transfers of shares of stock of the Corporation shall
be made only on the stock transfer books of the Corporation by the holder of
record thereof
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or by his or her legal representative or attorney in fact, who shall furnish
proper evidence of authority to transfer to the Secretary, or a transfer clerk
or a transfer agent, and upon surrender of the certificate or certificates for
such shares properly endorsed and payment of all taxes thereon. The person in
whose name shares of stock stand on the books of the Corporation shall be deemed
the owner thereof for all purposes as regards the Corporation.
3. Regulations. The Board of Directors may make such rules and regulations
as it may deem expedient, not inconsistent with these Bylaws, concerning the
issue, transfer and registration of certificates for stock of the Corporation.
The Board of Directors may appoint, or authorize any officer or officers or any
committee to appoint, one or more transfer clerks or one or more transfer agents
and one or more registrars, and may require all certificates for stock to bear
the signature or signatures of any of them.
4. Lost Certificates. The Board of Directors may direct a new certificate
or certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost or destroyed,
upon the making of an affidavit of the fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost or destroyed.
5. Registered Stockholders. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares
to receive dividends, and to vote as such owner, and hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Nevada.
ARTICLE VIII
DIVIDENDS
The Board of Directors may from time to time declare, and the Corporation
may pay, dividends on its outstanding shares of stock in the manner and upon the
terms and conditions provided in the Articles of Incorporation and the Nevada
General Corporation Law.
ARTICLE IX
SEAL
A corporate seal shall not be requisite to the validity of any instrument
executed by or on behalf of the Corporation. Nevertheless, if in any instance a
corporate seal is
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used, the same shall bear the full name of the Corporation and the year and
state of incorporation, or words or figures of similar import.
ARTICLE X
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation shall indemnity its directors and officers to the maximum
extent permitted by the Nevada General Corporation Law. Indemnification shall be
provided unless it is ultimately determined by a court of competent jurisdiction
that (i) the indemnified party did not act in a manner he or she believed in
good faith to be in, or not opposed to, the best interests of the Corporation
and, (ii) with respect to any criminal action or proceeding, the indemnified
party had no reasonable cause to believe his or her conduct was lawful. Expenses
shall be advanced to an indemnified party upon written confirmation that he or
she has not acted in a manner that would preclude indemnification above and an
undertaking to return any advances if it is ultimately determined by a court of
competent jurisdiction that the party is not entitled to indemnification under
the standard set forth herein.
ARTICLE XI
AMENDMENTS
These Bylaws may be repealed, altered or amended, or new bylaws may be
adopted by the affirmative vote of a majority of all the directors. These Bylaws
may also be repealed, altered or amended, or new bylaws may be adopted by the
affirmative vote of not less than a majority of the combined voting power of the
then outstanding capital stock of the Corporation.
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