Exhibit 3.4
BYLAWS
OF
ATOMIC PAINTBALL, INC.
ARTICLE ONE - OFFICES
SECTION ONE. REGISTERED OFFICE. The Office of the Corporation is
located at 219 Josey Ln. Red Oak, Texas 75154.
SECTION TWO PRINCIPLE OFFICE. The principle office of the corporation
shall be at 219 Josey Lane, Red Oak, Texas 75154, provided that the board of
directors shall have power to change the location of the principle office in its
discretion.
SECTION THREE. ADDITIONAL OFFICE. The Corporation may also have offices
at such other places, within or without the State of Texas, where the
Corporation is qualified to do business, as the Board of Directors may from time
to time designate and as the business of the Corporation may require.
ARTICLE TWO - SHAREHOLDER'S MEETINGS
SECTION ONE. PLACE OF MEETINGS. Meetings of the Shareholders shall be
held at any place, either within or without the State of Texas, designated by
the Board of Directors pursuant to authority hereinafter granted to the Board or
by the written consent of all persons entitled to vote thereat. In the absence
of any such designation, Shareholder's meetings shall be held at the Registered
Office of the Corporation.
SECTION TWO. ANNUAL MEETING. The annual meeting of Shareholders shall
be held at a date and time to be set by resolution of the Board of Directors. If
no resolution is made setting the date for the annual meeting of the
Shareholders, such meeting shall be held on the annual anniversary of the date
on which the Corporation's Articles of Incorporation were issued. At such
meetings Directors shall be elected, reports of the affairs of the Corporation
shall be considered and any other business may be transacted which is within the
powers of the Shareholders. The date and time of the Annual Meeting of
Shareholders may be changed by appropriate resolutions of the Board of
Directors, to a time within sixty (60) days before or following the date stated
herein.
SECTION THREE. NOTICE OF MEETING. Notice of all meetings of the
Shareholders stating the place, day and hour of the meeting, and in case of a
special meeting the purpose or purposes for which the meeting is called, shall
be given in writing to each Shareholder entitled to vote at the meeting at least
ten (10) but not more than fifty (50) days before the date of the meeting either
personally or by mail or other means of written communication, addressed to the
Shareholder at the address appearing on the books of the Corporation or given by
the Shareholder to the Corporation for the purpose of notice. If mailed, the
notice shall be deemed to be delivered when deposited in the United States mail,
with postage prepaid, properly addressed to the Shareholder. Notice of adjourned
meetings is not necessary unless the meeting is adjourned for thirty (30) days
or more, in which case notice of the adjourned meeting shall be given as in the
case of any special meeting. Any notice required by law or by these Bylaws may
waived by the person entitled to the notice by the execution of a written waiver
of such notice, which waiver may be signed before or after the time stated in
the notice.
SECTION FOUR. SPECIAL MEETINGS. Special meetings of the Shareholders
may be called by the President, the Board of Directors or by the holder or
holders of at least one-tenth (1/10) of all the shares entitled to vote at the
meeting. No question may be voted upon at a special meeting of the Shareholders
unless the notice of said meeting states that one of the purposes of the meeting
will be to act upon the question or unless the meeting is attended by all of the
Shareholders entitled to vote upon the question and all the Shareholders vote
that the question may then be voted upon at that meeting.
SECTION FIVE. QUORUM AND MANNER OF ACTION. The holders of a majority of
shares entitled to vote, represented in person or by proxy, shall constitute a
quorum at a meeting of Shareholders. If less than a majority of the outstanding
shares are represented at a meeting, a majority of the shares so represented may
adjourn the meeting from time to time without notice other than announcement at
the meeting that the meeting shall be adjourned until a quorum shall be present.
At a reconvened meeting at which a quorum is present or represented, any
business may be transacted which might have been transacted at the meeting as
originally noticed. When a quorum is present at any meeting, the vote of the
holders of a majority of the shares having voting power, present in person or
represented by proxy, shall decide any question brought before the meeting,
unless the question is one upon which, by express provision of the statues, the
Articles of Incorporation or these Bylaws, a different vote is required, in
which case the express provision shall govern and control the vote required for
decision upon the question.
SECTION SIX. VOTING OF COMMON SHARES. Each outstanding share of common
stock shall be entitled to one (1) vote on each matter submitted to a vote at a
meeting of Shareholders.
SECTION SEVEN. ELIGIBLE SHAREHOLDERS. For the purpose of determining
Shareholders entitled to notice of and to vote at any meeting of Shareholders or
at any adjournment thereof, for the purpose of determining Shareholders entitled
to receive payment of any dividend or for the purpose of determining the
shareholders for any other proper purpose, the Board of Directors of the
corporation may provide that the share transfer books shall be closed for a
stated period, not to exceed in any case fifty (50) days. If the share transfer
books shall be closed for the purpose of determining Shareholders entitled to
notice of or to vote at a meeting of Shareholders, the books shall be closed for
at least ten (10) days immediately preceding the meeting. In lieu of closing the
share transfer books, the Board of Directors may fix in advance a date as the
record date for such determinations of Shareholders, with the date in any case
to be not more than fifty (50) days and in case of a meeting of Shareholders,
not less than ten (10) days prior to the date on which the particular action
requiring the determination of Shareholders is to be taken. If the share
transfer books are not closed and no record date is fixed for the determination
of Shareholders entitled to notice of and to vote at a meeting of Shareholders
or shareholders entitled to receive payment of a dividend, the date on which
notice of the meeting is mailed or the date on which the resolution of the Board
of Directors declaring the dividend is adopted, as the case may be, shall be the
record date for the determination of Shareholders. When a determination of
shareholders entitled to vote at any meeting of Shareholders has been made as
provided in this section, the determination shall apply to any adjournment
thereof.
SECTION EIGHT. VOTING LIST. The Officer or agent having charge of the
Corporation's share transfer books shall make, at least ten (10) days before
each meeting of Shareholders, a complete list of the Shareholders entitled to
vote at the meeting or at any adjournment thereof. The list shall be arranged in
alphabetical order with the address of each Shareholder and the number of shares
owned by each Shareholder. The list, for a period of ten (10) days prior to the
meeting, shall be kept on file at the Registered Office of the Corporation and
shall be subject to the inspection by any Shareholder at any time during usual
and ordinary business hours. The list shall also be produced and kept open at
the time and place of the meeting and shall be subject to the inspection of any
Shareholder during the whole time of the meeting. The original share transfer
books shall be prima facie evidence as to the Shareholders who are entitled to
examine the list and transfer books and to vote at any meeting of Shareholders.
SECTION NINE. PROXIES. At any meeting of Shareholders, a Shareholder may
vote in person or by proxy executed in writing by the Shareholder or by his duly
authorized attorney-in- fact. The proxy shall be filed with the Secretary of the
Corporation before or at the time of the meeting. No proxy shall be valid after
eleven (11) months from the date of its execution, unless otherwise specifically
provided in the proxy. Each proxy shall be revocable unless expressly provided
therein to be irrevocable and unless otherwise made irrevocable by law.
SECTION TEN. ACTION WITHOUT MEETING. Any action required by the Texas
Business Corporation Act to be taken at any annual or special meeting of
Shareholders, or any action which may be taken at any annual or special meeting
of Shareholders, may be taken without a meeting, without prior notice, and with
a vote, if a consent or consents in writing , setting forth the action so taken,
shall be signed by the holder or holders of shares having not less than the
minimum number of votes that would be necessary to take such action at a meeting
at which the holders of all shares entitled to vote on the action were present
and voted.
SECTION ELEVEN. CONSENT OF ABSENTEES. No defect in the calling or
noticing of a Shareholder's meeting will affect the validity of any action at
the meeting if a quorum was present and if each Shareholder not present in
person or by proxy signs a written waiver of notice, consent to the holding of
the meeting or approval of the Minutes, either before or after the meeting and
such waivers, consents or approvals are filed with the corporate records or made
a part of the Minutes of the meeting.
SECTION TWELVE. ELECTION INSPECTOR. In advance of any meeting of
Shareholders, the Board of Directors may appoint any person, other than a
nominee for office, as inspector of election to act at such meeting or any
adjournment thereof. If an inspector of election is not so appointed, the
chairman of any such meeting may, and on the request of any Shareholder or his
proxy, shall, appoint an inspector of election at the meeting. In case the
person appointed as inspector fails to appear or fails or refuses to act, the
vacancy may be filled by appointment by the Board of Directors in advance of the
meeting or at the meeting by the person acting as chairman. The inspector of
election shall determine the number of shares outstanding and the voting power
of each, the shares represented at the meeting, the existence of a quorum, the
authenticity, validity, and effect of proxies, receive notes, ballots or
consents, hear and determine all challenges and questions in any way arising in
connection with the right to vote, count and tabulate all votes or consents,
determine the result, and do such acts as may be proper to conduct the election
or vote with fairness to all Shareholders. The inspector of election shall
perform his duties impartially, in good faith, to the best of his ability and as
expeditiously as is practical. On request of the chairman of the meeting or of
any Shareholder or his proxy, the inspector shall make a report in writing of
any challenge or question of matter determined by him and execute a certificate
of any fact found by him. Any report or certificate made by him is prima facie
evidence of the facts stated therein.
SECTION THIRTEEN. CONDUCT OF MEETING. At every meeting of the
Shareholders, the President, or in his absence, the Vice President designated by
the Board of Directors, shall act as chairman. The Secretary of the Corporation,
or in his absence, any person appointed by the presiding officer, shall act as
Secretary of all meetings of the Shareholders.
SECTION FOURTEEN. CUMULATIVE VOTING. Cumulative voting by the
Shareholders of the Corporation at any election for Directors is expressly
prohibited. The Shareholders entitled to vote for Directors in any election
shall be entitled to cast one (1) vote and no more per share for each Director
to be elected.
SECTION FIFTEEN. VOTING OF SHARES OF CERTAIN HOLDERS.
(a) Shares standing in the name of another corporation may be
voted by such officer, agent or proxy as the Bylaws of such corporation may
authorize, or in the absence of such authorization, as the Board of Directors of
such corporation may determine.
(b) Shares held by an administrator, executor, guardian or
conservator may be voted by him so long as such shares are in the possession and
forming a part of the estate being served by him, either in person or by proxy,
without the necessity of a transfer of the shares into his name. Shares standing
in the name of a trustee may be voted by him, either in person or by proxy, but
no trustee shall be entitled to vote shares held by him, either in person or by
proxy, without a transfer of the shares into his name as trustee.
(c) Shares standing in the name of a receiver may be voted by
the receiver, and shares held by or under the control of a receiver may be voted
by him without the transfer thereof into his name if authority to do so is
contained in an appropriate order of the court by which he was appointed.
(d) A shareholder whose shares are pledged shall be entitled
to vote such shares until they have been transferred into the name of the
pledgee, and thereafter the pledgee shall be entitled to vote the transferred
shares.
(e) Treasury shares, shares of its own stock owned by another
corporation the majority of the voting stock of which is owned or controlled by
this Corporation, and shares of its own stock held by this corporation in a
fiduciary capacity shall not be voted, directly or indirectly, at any meeting,
and shall not be counted in determining the total number of outstanding shares
at any given time.
ARTICLE THREE - DIRECTORS
SECTION ONE. POWERS. The business and affairs of the Corporation shall
be managed by the Board of Directors which shall exercise all the powers of the
Corporation and do all lawful acts and things as are not by statute, by the
Articles of Incorporation or by these Bylaws directed or required to be
exercised or done or approved by the Shareholders.
SECTION TWO. NUMBER AND QUALIFICATION. The Board of Directors shall
consist of at least one and no more than nine (9) Directors, who need not be a
Shareholder or resident of the State of Texas. The actual number of Directors
chosen within these limits shall be established by the Board of Directors by
properly approved resolution. The upper limit to the number of Directors may be
increased or decreased from time to time by amendment to these Bylaws; provided,
however, that no decrease in the number of Directors shall have the effect of
shortening the term of any incumbent Director.
SECTION THREE. TERM OF OFFICE. The Directors named in the Articles of
Incorporation shall hold office until the first annual meeting of Shareholders
and until their successors are elected and qualified, either at an annual or a
special meeting of Shareholders. Directors other than those named in the
Articles of Incorporation, shall hold office until the next annual meeting and
until their successors are elected and qualified.
SECTION FOUR. VACANCIES. Vacancies in the Board of Directors shall
exist in the case of the happening of any of the following events; (a) the
death, resignation or removal of any Director; (b) the authorized number of
Directors is increased; or (c) at any annual, regular or special meeting of
Shareholders at which any Director is elected, the Shareholders fail to elect
the full authorized number of Directors to be voted for at that meeting. In
addition, the Board or Directors may declare vacant the office of a Director in
either of the following cases: (a) if he is adjudged incompetent by an order of
Court or convicted of a felony; or (b) if within thirty (30) days after notice
of his election, he does not accept the office either in writing or by attending
a meeting of the Board of Directors. Vacancies may be filled by the unanimous
vote of the remaining Directors, though less than a quorum or by a sole
remaining Director. Each Director so elected shall hold office until his
successor is elected at an annual, regular or special meeting of the
Shareholders. The Shareholders may elect a Director at any time to fill any
vacancy not filled by the Directors. If the Board of Directors accepts the
resignation of a Director tendered to take effect at a future time, the Board or
the Shareholders may elect a successor to take office when the resignation
becomes effective. A reduction of the authorized number of Directors shall not
remove any Director prior to the expiration of his term of office.
SECTION FIVE. REMOVAL. The entire Board of Directors or any individual
Director may be removed from office, either with or without cause, by a vote of
Shareholders holding a majority of the outstanding shares entitled to vote at an
election of Directors. If any or all Directors are so removed, new Directors may
be elected at the same meeting.
SECTION SIX. PLACE OF MEETINGS. All meetings of the Board of Directors
shall be held at any place, within or without the State of Texas, which has been
designated from time to time by resolution of the Board or by written consent of
all members of the Board. Any regular or special meeting is valid, wherever
held, if held on written consent of all members of the Board given either before
or after the meeting and filed with the Secretary of the Corporation.
SECTION SEVEN. ANNUAL MEETINGS. Annual meetings of the Board of
Directors shall be held, without call or notices, immediately following each
annual meeting of the Shareholders of the Corporation.
SECTION EIGHT. SPECIAL MEETINGS. Special meetings of the Board of
Directors of the Corporation shall be called by the President, or, if he is
absent or is unable or refuses to act, by any Vice President or by any Director.
SECTION NINE. NOTICE OF SPECIAL MEETING. Written notice of the time,
place and purpose of special meetings of the Board of Directors shall be
delivered personally to each Director or sent to each Director by mail or by
other form of written communication, at least seven (7) days before the meeting.
If the address of a Director is not shown on the records and is not readily
ascertainable, notice shall be addressed to him at the city or place in which
meetings of the Directors are regularly held. Notice of the time and place of
holding an adjourned meeting of a meeting need not be given to absent Directors
if the time and place are fixed at the meeting adjourned.
SECTION TEN. QUORUM AND MANNER OF ACTION. At all meetings of the Board
of Directors, the presence of a majority of the Directors shall be necessary and
sufficient to constitute a quorum for the transaction of business and the act of
a majority of Directors present at any meeting at which there is a quorum shall
be the act of the Board of Directors, except as otherwise specifically provided
by statute, by the Articles of Incorporation, or by these Bylaws. If a quorum
shall not be present at any meeting of Directors, the Directors present may
adjourn the meeting from time to time, without notice other than announcement at
the meeting that the meeting shall be adjourned, until a quorum shall be
present. At a reconvened meeting at which a quorum is present any business may
be transacted which might have been transacted at the meeting as originally
noticed. Each Director who is present at a meeting will be deemed to have
assented to any action taken at such meeting unless his dissent to the action is
entered in the Minutes of the meeting or unless he shall file his written
dissent thereto with the Secretary of the meeting or shall forward such dissent
by registered mail to the Secretary of the Corporation immediately after such
meeting.
SECTION ELEVEN. ACTION WITHOUT MEETING. Any action required or
permitted to be taken by the Board of Directors or any Committee of Directors
under any provision of the Texas Business Corporation Act may be taken without a
meeting, if all members of the Board or of the Committee of Directors shall
individually or collectively consent in writing to such action. Such written
consent or consents shall be filed with the Minutes of the proceedings of the
Board. Such action by written consent shall have the same force and effect as a
unanimous vote of such Directors. Any certificate or other document filed under
any provisions of the Texas Business Corporation Act which relates to actions so
taken shall state that the action was taken by unanimous written consent of the
Board of Directors to so act and such statement shall be prima facie evidence of
such authority.
SECTION TWELVE. VALIDATION OF MEETING DEFECTIVELY CALLED. The
transaction of any meeting of the Board of Directors, however called and noticed
or wherever held, are as valid as though had at a meeting duly held after
regular call and notice, if a quorum is present and if, either before or after
the meeting, each of the Directors not present signs a waiver of notice, a
consent to holding the meeting or an approval of the Minutes thereof. All such
waivers, consents, or approvals shall be filed with the corporate records or
made a part of the Minutes of the meeting. Attendance by a Director at a meeting
shall constitute a waiver of notice of the meeting, unless the express purpose
for such attendance is to present the objection that the meeting is not lawfully
called or convened.
SECTION THIRTEEN. CONDUCT OF MEETINGS. The President, or, in his
absence, the Vice President designated by the Board of Directors, shall preside
at meetings of the Board of Directors. The Secretary of the Corporation, or in
his absence, any person appointed by the presiding officer, shall act as
Secretary of the Board of Directors.
SECTION FOURTEEN. COMPENSATION. Directors shall receive such
compensation for their services as Directors as shall be determined from time to
time by resolution of the Board. Any Director may serve the Corporation in any
other capacity as an officer, agent, employee or otherwise and receive
compensation therefor.
SECTION FIFTEEN. INTERESTED DIRECTORS. Any contract or other
transaction between the Corporation and any of its Directors (or any corporation
or firm in which any of its Directors is directly of indirectly interested)
shall be valid for all purposes notwithstanding the presence of such Director at
the meeting; provided however, the foregoing shall apply only if the interest of
each such Director is known or disclosed to the Board of Directors and it shall
nevertheless authorize or ratify such contract or other transaction by a
majority of the Directors present, each such interested Director to be counted
in determining whether a quorum is present but not in calculating the majority
necessary to carry such vote.
SECTION SIXTEEN. EXECUTIVE COMMITTEE. The Board of Directors may at any
time appoint two (2) or more Directors to serve and act as an Executive
Committee. The Executive Committee so appointed shall have such power and
authority to conduct the business and affairs of the Corporation as is vested by
law, the Articles of Incorporation and these Bylaws in the Board of Directors as
a whole, except that it may not take any action that is specifically required by
statute to be taken by the entire Board of Directors. Members of the Executive
Committee shall receive such compensation as the Board or Directors may from
time to time provide. Each Director shall be deemed to have assented to any
action of the Executive Committee unless he shall, within seven (7) days after
receiving actual or constructive notice of such action, deliver his written
dissent thereto to the Secretary of the Corporation. Members of the Executive
Committee shall serve at the pleasure of the Board of Directors.
ARTICLE FOUR - OFFICERS
SECTION ONE. OFFICERS. The Officers of the Corporation shall be a
President and a Secretary and may be a Vice President and a Treasurer. The
Corporation may also have, at the discretion of the Board of Directors, one or
more additional Vice Presidents, one or more Assistant Treasurers, and such
other Officers as may be appointed in accordance with the Provisions of Section
Three of this Article. One person may hold two or more offices.
SECTION TWO. ELECTION. The Officers of the Corporation shall be elected
annually by the Board of Directors and each shall hold his office until he shall
resign or shall be removed or otherwise is qualified to serve, or his successors
shall be elected and qualified.
SECTION THREE. ADDITIONAL OFFICERS. The Board of Directors may appoint
such other officers or agents as the business of the Corporation may require,
each of whom shall hold office for such period, have such authority and perform
such duties as are provided in these Bylaws or as the Board or Directors may
from time to time determine.
SECTION FOUR. COMPENSATION. The compensation of the President, all Vice
Presidents, the Secretary and the Treasurer shall be fixed by the Board of
Directors, but the compensation of all minor officers and all other agents and
employees of the Corporation may be fixed by the President, unless by resolution
the Board of Directors shall determine otherwise; provided, however, that
without the express approval of the Board of Directors, the President may not
enter into any employment agreement on behalf of the Corporation with any person
which may not be terminated by the Corporation, either at will or upon thirty
(30) days written notice.
SECTION FIVE. REMOVAL AND RESIGNATION. Any Officer may be removed,
either with or without cause, by a majority of the Directors in office, at any
regular or special meeting of the Board; provided, however, that such removal
shall be without prejudice to the contract rights, if any, of the person
removed. Any Officer may resign at any time by giving written notice to the
Board of Directors or to the President or to the Secretary of the Corporation.
Any such resignation shall take effect at the date of the receipt of such notice
or at any later time specified therein; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
SECTION SIX. VACANCIES. If the office of the President, Vice President,
Secretary or Treasurer becomes vacant by reason of death, resignation, removal
or otherwise, the Board of Directors shall elect a successor who shall hold
office for the unexpired term and until his successor is elected.
SECTION SEVEN. PRESIDENT. The President shall be the Chief Executive
Officer of the Corporation and shall, subject to the control of the Board of
Directors, have general supervision, direction and control of the business and
Officers of the Corporation and shall have the general powers and duties of
management usually vested in the office of President of a corporation and shall
have such other powers and duties as may be prescribed by the Board of Directors
or the Bylaws. Within this authority and in the course of his duties he shall:
(a) Preside at all meetings of the Shareholders and all
meetings of the Board of Directors and shall be ex officio a member of the
Executive Committee, if any;
(b) Sign all certificates of stock of the Corporation;
(c) When authorized by the Board of Directors or required by
law, execute in the name of the Corporation deeds, conveyances, notices, leases,
checks, drafts, bills of exchange, warrants, promissory notes, bonds,
debentures, contracts and other papers and instruments in writing and, unless
the Board of Directors shall order other wise by resolution, make such contracts
as the ordinary conduct of the Corporation's business may require; and
(d) Appoint and remove, employ and discharge and prescribe the
duties and fix the compensation of all agents, employees and clerks of the
Corporation other than the duly appointed Officers, subject to the approval of
the Board of Directors, and control, subject to the direction of the Board of
Directors, all of the Officers, agents and employees of the Corporation.
SECTION EIGHT. VICE PRESIDENT. In the absence or disability of the
President, the Vice President designated by the Board of Directors shall perform
all the duties of the President and, when so acting, shall have the powers of
and be subject to all the restrictions on the President. The Vice President or
Vice Presidents shall have such other powers and perform such other duties as
from time to time may be prescribed for him or them by the Board of Directors or
the Bylaws.
SECTION NINE. SECRETARY. The Secretary shall:
(a) Attest and keep at the principal office of the Corporation
the original or a copy of its Bylaws as amended or otherwise altered to date;
(b) Keep at the principal office of the Corporation or such
other place as the Board of Directors may order, a book of Minutes of all
meetings of its directors, Shareholders and Executive Committee, with the time
and place of holding, whether regular or special, and, if special, how
authorized, the notice thereof given, the names of those present at Directors'
meetings, the number of shares or members present or represented at
Shareholder's meetings and the proceedings thereof;
(c) Sign or attest such documents as may be required by law or
the business of the Corporation and keep the corporate seal and affix it to such
instruments as may be necessary or proper;
(d) Be custodian of the records and of the seal of the
Corporation;
(e) See that all notices are duly given in accordance with the
provisions of these Bylaws or as required by law;
(f) Keep at the principal office of the Corporation a share
register or duplicate share register showing the names of the Shareholders and
their addresses; the number, date of issue, and class of shares represented by
each outstanding share certificate surrendered for cancellation.
(g) See that the books, reports, statements, certificates and
all other documents and records required by law are properly kept and filed; and
(h) In general, perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned by the
Board or Directors.
SECTION TEN. TREASURER. The Treasurer shall:
(a) Have charge and custody of, and be responsible for, all
funds and securities of the Corporation and deposit all such finds in the name
of the Corporation in such banks, trust companies or other depositories as shall
be selected by the Board of Directors;
(b) Receive, and give receipt for, moneys due and payable to
the Corporation from any source whatsoever;
(c) Disburse or cause to be disbursed, the funds of the
Corporation as may be directed by the Board of Directors, taking proper vouchers
for such disbursements, gains, losses, capital, surplus and shares;
(d) Keep and maintain adequate and correct accounts of the
Corporation's properties and business transactions including accounts of its
assets, liabilities, receipts, disbursements, gains, losses, capital, surplus
and shares;
(e) Render to the President and Directors, whenever requested,
an account of all transactions as Treasurer and of the financial condition of
the Corporation;
(f) Prepare, or cause to be prepared, and certify the
financial statements to be included in the annual report to Shareholders and
statements of the affairs of the Corporation when requested by Shareholders
holding at least ten percent (10%) of the number of outstanding shares of the
Corporation; and
(g) In general, perform all the duties incident to the office
of Treasurer and such other duties as from time to time may be assigned by the
Board or Directors.
ARTICLE FIVE - EXECUTION OF INSTRUMENTS
SECTION ONE. AUTHORITY FOR EXECUTION OF INSTRUMENTS. The Board of
Directors, except as otherwise provided in these Bylaws, may authorize any
Officer or Officers, agent or agents, to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the Corporation and such
authority may be general or confined to specific instances; and, unless so
authorized, no Officer, agent or employees shall have any power or authority to
bind the Corporation by any contract or engagement or to pledge its credit or to
render it liable pecuniarily for any purpose or in any amount.
SECTION TWO. EXECUTION OF INSTRUMENTS. Unless otherwise specifically
determined by the Board of Directors or otherwise required by law, formal
contracts of the Corporation, promissory notes, deeds of trust, mortgages and
other evidences of indebtedness of the Corporation and other corporate
instruments and documents and certificates of shares of stock owned by the
Corporation shall be executed, signed or endorsed by the President and may have
the corporate seal affixed thereto.
ARTICLE SIX - DEPOSIT OF FUNDS
SECTION ONE. BANK ACCOUNTS. All funds of the Corporation shall be
deposited from time to time to the credit of the Corporation with such banks,
trust companies or other depositories as the Board of Directors may select.
SECTION TWO. SIGNING OF CHECKS. All checks, drafts or other orders for
payment of money, notes or other evidences or indebtedness, issued in the name
of or payable to the Corporation, shall be signed or endorsed by such person or
persons and in such manner as shall be determined from time to time by
resolution of the Board or Directors.
ARTICLE SEVEN - ISSUANCE AND TRANSFER OF SHARES
SECTION ONE. ISSUANCE OF STOCK. The Board of Directors may offer for
sale and issue shares of the common stock of the Corporation as authorized in
the Articles of Incorporation.
SECTION TWO. CERTIFICATES FOR FULLY PAID SHARES. Neither shares nor
certificates representing such shares may be issued by the Corporation until the
full amount of the consideration has been paid. When such consideration has been
paid to the Corporation, the shares shall be deemed to have been issued and the
certificate representing such shares shall be issued to the Shareholder.
SECTION THREE. CONSIDERATION FOR SHARES. The consideration paid for the
issuance of shares shall consist of money paid, labor done or property actually
received. Neither promissory notes nor the promise of future services shall
constitute payment or part payment for shares of the Corporation.
SECTION FOUR. CERTIFICATES REPRESENTING SHARES. Certificates in the
form as may be determined by the Board or Directors and as shall conform to the
requirements of the statutes, the Articles of Incorporation and these Bylaws
shall be delivered representing all shares to which Shareholders are entitled.
The certificates shall be consecutively numbered and shall be entered in the
books of the Corporation as they are issued. Each certificate shall be signed by
the President of the Corporation, may be signed by the Secretary of the
Corporation and shall be sealed with the seal of the Corporation. Each
certificate shall state the following upon the face thereof:
(a) That the Corporation is organized under the laws of the
State of Texas;
(b) The name of the person to whom issued;
(c) The number and class of shares and the designation of the
series, if any, which such certificate represents; and
(d) The par value of each share represented by the
certificate, or a statement that the shares are without par value.
SECTION FIVE. REPLACEMENT OF CERTIFICATES. No new certificates shall be
issued until the former certificate for the shares represented thereby shall
have been surrendered and cancelled, except in the case of lost or destroyed
certificates for which the Board of Directors may order new certificates to be
issued upon such terms, conditions and guarantees as the Board may see fit to
impose, including the filing of sufficient indemnity.
SECTION SIX. TRANSFER AGENTS AND REGISTRARS. The Board of Directors may
appoint one or more transfer agents and may appoint one or more registrars who
shall be appointed at such times and places as the requirements of the
Corporation may necessitate and as the Board of Directors may designate.
SECTION SEVEN. TRANSFER OF SHARES. Shares of the stock shall be
transferable only on the books of the Corporation by the holder thereof in
person or by his duly authorized attorney. Upon surrender to the Corporation or
transfer agent of the Corporation of a certificate or certificates representing
shares, duly endorsed or accomplished by a proper evidence of succession,
assignment or authority to transfer, it shall be the duty of the Corporation or
the transfer agent of the Corporation to issue a new certificate or certificates
to the person entitled thereto, to cancel the old certificate or certificates
and to record the transaction upon its books. The transferee in any transfer of
shares shall be deemed to have full notice of, and to consent to, the Bylaws of
the Corporation to the same extent as if he had signed a written assent thereto.
Whenever any transfer of shares shall be made for collateral security, and not
absolutely, and written notice thereof shall be given to the Secretary of the
Corporation or its transfer agent, if any, such fact shall be stated in the
entry of the transfer.
SECTION EIGHT. REGISTERED SHAREHOLDERS. The Corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and, accordingly, shall not be bound to recognize any
equitable or beneficial claim to or interest in the share or shares on the part
of any other person.
SECTION NINE. REASONABLE DOUBT AS TO RIGHT TO TRANSFER. When a transfer
of shares is requested and there is reasonable doubt as to the right of the
person seeking the transfer, the Corporation or its transfer agent, if any,
before recording the transfer of the shares on its books or issuing any
certificate therefor, may require from the person seeking the transfer
reasonable proof of his right to the transfer. If there remains a reasonable
doubt of the right to the transfer, the Corporation may refuse a transfer unless
the person gives adequate security or a bond of indemnity executed by a
corporate surety or by two (2) individual sureties satisfactory to the
Corporation as to form, amount and responsibility of the sureties. The bond
shall be conditioned to protect the Corporation, its Officers, transfer agents
and registrars, if any, or any of them against any loss, damage, expense or
other liability to the owner of the shares of a new certificate for shares.
ARTICLE EIGHT - CORPORATE RECORDS, REPORTS AND SEAL
SECTION ONE. MINUTES OF MEETINGS. The Corporation shall keep and
maintain a book of Minutes of all meetings of its Directors and of its
Shareholders with the time and place of holding, whether regular or special,
and, if special, how authorized, the notice thereof given, the names of those
present at Directors' meetings, the number of shares present or represented at
Shareholders' meetings and the proceedings thereof.
SECTION TWO. BOOKS OF ACCOUNTS. The Corporation shall keep and maintain
adequate and correct accounts of its properties and business transactions,
including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital surplus and shares. Any surplus, including earned surplus,
paid-in surplus and surplus arising from a reduction of stated capital, shall be
classified according to source and shown in a separate account.
SECTION THREE. SHARE REGISTER. The Corporation shall keep and maintain
a share register, showing the names of the Shareholders and their addresses, the
number and classes of shares held by each, and the number and date of
cancellation of every certificate surrendered for cancellation.
SECTION FOUR. INSPECTION OF RECORDS BY SHAREHOLDER. Any person who
shall have been a Shareholder of record for at least six (6) months immediately
preceeding this demand or who is the holder of record of at least five percent
(5%) of all of the outstanding shares of the Corporation, on written demand
stating the purpose thereof, has the right to examine, in person or by agent,
accountant or attorney, at any reasonable time or times, for any proper purpose,
its books and records of account, Minutes and record of Shareholders and is
entitled to make extracts therefrom.
SECTION FIVE. INSPECTION OF RECORDS BY DIRECTORS. Every Director shall
have the absolute right at any reasonable time to inspect all books, records,
documents of every kind and the physical properties of the Corporation. Such
inspection by a Director may be made in person or by agent or attorney and the
right of inspection includes the right to make extracts therefrom.
SECTION SIX. FINANCIAL REPORTS. The Board of Directors must, when
requested by the holders of at least one-third (1/3) of the outstanding shares
of the Corporation, present written reports concering the situation and business
of the Corporation.
SECTION SEVEN. FISCAL YEAR. The fiscal year of the Corporation shall be
determined by the Board of Directors.
SECTION EIGHT. CORPORATE SEAL The Board of Directors may adopt, use and
thereafter alter the corporate seal.
SECTION NINE. DIVIDENDS. The Board of Directors may declare and the
Corporation may pay dividends on its outstanding shares in cash, property or its
own shares, pursuant to law and subject to the provisions of its Articles of
Incorporation.
SECTION TEN. CONTRACTS. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or to execute
and deliver any instrument in the name, and on behalf of, the Corporation. This
authority may be general or confined to specific instances.
SECTION ELEVEN. LOANS. No loans shall be contracts on behalf of the
Corporation and no evidence of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. This authority may be
general or confined to specific instances.
SECTION TWELVE. RESERVES. The Board of Directors may by resolution
create a reserve or reserves out of earned surplus for any purpose or purposes,
and may abolish any such reserve in the same manner.
ARTICLE NINE - INDEMNIFICATION OF OFFICERS AND DIRECTORS
SECTION ONE. INDEMNIFICATION. The Corporation shall be empowered, to
the extent allowed by Article 2.02-1 of the Texas Business Corporation Act, to
indemnify Directors, Officers, agents and employees as follows:
(a) Persons. The Corporation shall indemnify to the extent
provided in paragraph (b), (d) or (f):
(1) any person who is or was Director, Officer,
agent, or employee of the Corporation, and
(2) any person who serves or served at the
Corporation's request as a Director, Officer, agent, employee, partner or
trustee of another corporation or of a partnership, joint venture, trust or
other enterprise.
(b) Extent - Derivative Suits. In case of a suit by or in the
right of the Corporation against a person named in paragraph (a) by reason of
his holding a position named in paragraph (a), the Corporation shall indemnify
him, if he satisfies the standard in paragraph (c), for expenses (including
attorney's fees but excluding amounts paid in settlement) actually and
reasonably incurred by him in connection with the defense or settlement of the
suit.
(c) Standard - Derivative Suit. In case of a suit by or in the
right of the Corporation, a person named in paragraph (a) shall be indemnified
only if:
(1) he is successful on the merits of otherwise; or
(2) he acted in good faith in the transaction which
is the subject of this suit, and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the Corporation. However, he shall not be
indemnified in respect of any claim, issue or matter as to which he has been
adjudged liable for negligence or misconduct in the performance of his duty to
the Corporation unless (and only to the extent that) the court in which the suit
was brought shall determine upon application that, despite the adjudication but
in view of all the circumstances, he is fairly and reasonably entitled to
indemnity for such expense as the court shall deem proper.
(d) Extent - Nonderivative Suits. In case of a suit, action or
proceeding (whether civil, criminal, administrative or investigative), other
than a suit by or in the right of the Corporation, together hereinafter referred
to as a Non-derivative suit, against a person named in paragraph (a) by reason
of his holding a position named in paragraph (a), the Corporation shall
indemnify him if he satisfies the standard in paragraph (e), for amounts
actually and reasonably incurred by him in connection with the defense or
settlement of the Non-derivative suit as:
(1) expenses (including attorney's fees);
(2) amounts paid in settlement;
(3) judgments; and
(4) fines.
(e) Standard - Nonderivative Suits. In case of a
Non-derivative suit, a person named in paragraph (a) shall be indemnified only
if:
(1) he is successful on the merits or otherwise; or
(2) he acted in good faith in the transaction which
is the subject of the Non- derivative suit, and in a manner he reasonably
believed to be in, and not opposed to, the best interests of the Corporation
and, with respect to any criminal action or proceeding, he had no reason to
believe his conduct was unlawful. The termination of a Non-derivative suit by
judgment, order, settlement, conviction or upon a plea of nolo contendre or its
equivalent shall not, of itself, create a presumption that the person failed to
satisfy the standard of this paragraph (e) (2).
(f) Determination That Standard Has Been Met. A determination
that the standard of paragraph (c) or (e) has been satisfied may be made by a
court or, except as stated in paragraph (c) (2) (second sentence), the
determination may be made by:
(1) a majority of the Directors of the Corporation
(whether or not a quorum) who were not parties to the action, suit or
proceeding;
(2) independent legal counsel (appointed by a
majority of the Directors of the Corporation, whether or not a quorum, or
elected by the Shareholders of the Corporation) in a written opinion; or
(3) the Shareholders of the Corporation.
(g) Proration. Anyone making a determination under paragraph
(f) may determine that a person has met the standard as to some matters but not
as to others, and may reasonably prorate amounts to be indemnified.
(h) Advance Payment. The Corporation may pay in advance any
expenses (including attorney's fees) which may become subject to the
indemnification under paragraphs (a)-(g) if:
(1) the Board of Directors authorized the specific
payment; and
(2) the person receiving the payment undertakes in
writing to repay unless it is ultimately determined that he is entitled to
indemnification by the Corporation under paragraphs (a)-(g).
Nonexclusive. The indemnification provided in paragraphs
(a)-(g) shall not be exclusive of any other rights to which a person may be
entitled by law, Bylaw, Agreement, vote of Shareholders or disinterested
Directors, or otherwise.
Continuation. The indemnification and advance payment provided
in paragraphs (a)-(h) shall continue as to a person who has ceased to hold a
position named in paragraph (a) and shall inure to his heirs, executors and
administrators.
(k) Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who holds or who has held any position named
in paragraph (a), against any liability incurred by him in any such position, or
arising out of his status as such, whether or not the Corporation would have
power to indemnify him against such liability under paragraphs (a)-(h).
(l) Reports. Indemnification payments, advance payments and
insurance purchases and payments made under paragraphs (a)-(k) shall be reported
in writing to the Shareholders of the Corporation with the next notice of annual
meeting, or within six (6) months, whichever is sooner.
(m) Severability. All of the provisions of this Article Nine
are separate from each other, and to the extent a particular provision is held
by a court of competent jurisdiction to be invalid for any reason, then such
holding shall not affect the enforceability and binding effect of the rest of
the provisions of this Article Nine not specifically held to be invalid, with
the remaining parts of this Article Nine remaining in full force and effect.
ARTICLE TEN - SURETY BONDS
SECTION ONE. SURETY BONDS. When the Board of Directors so directs,
Officers and agents of the Corporation shall be bonded for the faithful
performance of their duties and for the restoration to the Corporation of, in
case of their death, resignation, retirement, disqualification or removal from
office, all books, papers, vouchers, money and other properties of whatever kind
in their possession or under their control belonging to the Corporation, in the
amounts and by the surety companies as the Board of Directors may determine. The
premiums on the bonds shall be paid by the Corporation and the bonds so
furnished shall be in the custody of the Secretary.
ARTICLE ELEVEN - AMENDMENT OF BYLAWS
SECTION ONE. AMENDMENT. These Bylaws may be altered, amended or
repealed, and new Bylaws may be adopted, by the Directors, subject to repeal or
change by action of the Shareholders.
The foregoing set of Bylaws was unanimously adopted as the Bylaws of
Atomic Paintball, Inc., by the Board of Directors effective as of June 7, 2001,
to certify which witness my signature.
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ALTON K. SMITH, SECRETARY