PLAN AND AGREEMENT OF MERGER BETWEEN
INTERNATIONAL TRUST AND FINANCIAL SYSTEMS, INC. (A FLORIDA CORPORATION)
AND
MARMION INDUSTRIES CORP. (A NEVADA CORPORATION)
INTERNATIONAL TRUST AND FINANCIAL SYSTEMS, INC. (a Florida corporation)
"International Trust") and MARMION INDUSTRIES CORP. (a Nevada corporation)
("Marmion Industries"), hereby agree as follows:
1. Plan Adopted. A plan of merger merging International Trust with and
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into Marmion Industries (this "Plan of Merger"), pursuant to the provisions of
Chapter 92A of the Nevada Revised Statutes (the "NRS"), Chapter 607 of the
Florida Statutes (the "FS"), and Section 368(a)(1)(F) of the Internal Revenue
Code of 1986, as amended, is adopted as follows:
(a) International Trust shall be merged with and into Marmion
Industries, to exist and be governed by the laws of the State of Nevada.
(b) Marmion Industries shall be the Surviving Corporation (the
"Surviving Corporation").
(c) When this Plan of Merger shall become effective, the separate
existence of International Trust shall cease and the Surviving Corporation shall
succeed, without other transfer, to all the rights and properties of
International Trust and shall be subject to all the debts and liabilities of
such corporation in the same manner as if the Surviving Corporation had itself
incurred them. All rights of creditors and all liens upon the property of each
constituent entity shall be preserved unimpaired, limited in lien to the
property affected by such liens immediately prior to the merger (the "Merger").
(d) The Surviving Corporation will be responsible for the payment of
all fees and franchise taxes of the constituent entities payable to the State of
Nevada, if any.
(e) The Surviving Corporation will carry on business with the assets
of International Trust, as well as the assets of Marmion Industries.
(f) The Surviving Corporation will be responsible for the payment of
the fair value of shares, if any, required under Chapter 607 of the FS.
(g) The stockholders of International Trust will surrender all of
their shares in the manner hereinafter set forth.
(h) In exchange for the shares of International Trust surrendered by
its shareholders, the Surviving Corporation will issue and transfer to such
shareholders on the basis hereinafter set forth, shares of its common stock.
(i) The shareholders of Marmion Industries will keep their shares of
the Surviving Corporation.
2. Effective Date. The effective date of the Merger (the "Effective
---------------
Date") shall be the date of the filing of Articles of Merger for International
Trust and Marmion Industries in the States of Florida and Nevada.
3. Submission to Stockholders. This Plan of Merger shall be submitted
----------------------------
for approval separately to the stockholders of International Trust and Marmion
Industries in the manner provided by the laws of the States of Florida and
Nevada.
1
4. Manner of Exchange. On the Effective Date, the shareholders of
--------------------
International Trust shall surrender their stock certificates to Marmion
Industries in exchange for shares of the Surviving Corporation to which they are
entitled.
5. Basis of Exchange. The holders of shares of the common stock, $0.001
------------------
par value per share, of International Trust shall be entitled to receive, in
exchange for all the outstanding stock of International Trust, an amount of
stock so that after the issuance thereof, such holders of International Trust
will hold all of the issued and outstanding shares of the common stock of the
Surviving Corporation, par value $0.001 per share.
6. Shares of the Surviving Corporation Held by the Current Shareholders
----------------------------------------------------------------------
of Marmion Industries. The presently outstanding shares of the common stock of
- ----------------------
Marmion Industries will be cancelled.
7. Directors and Officers.
------------------------
(a) The present Board of Directors of International Trust shall serve
as the Board of Directors of the Surviving Corporation until the next annual
meeting or until such time as their successors have been elected and qualified.
(b) If a vacancy shall exist on the Board of Directors of the
Surviving Corporation on the Effective Date, such vacancy may be filled by the
Board of Directors as provided in the Bylaws of the Surviving Corporation.
(c) All persons who, on the Effective Date, are executive or
administrative officers of International Trust shall be officers of the
Surviving Corporation until the Board of Directors of the Surviving Corporation
shall otherwise determine. The Board of Directors of the Surviving Corporation
may elect or appoint such additional officers as it may deem necessary or
appropriate.
8. Articles of Incorporation. The Articles of Incorporation of Marmion
---------------------------
Industries, existing on the Effective Date and reflecting the change of the
corporate name to Marmion Industries Corp. and other provisions, a copy of which
are attached hereto as Exhibit A and incorporated herein for all purposes, shall
---------
continue in full force as the Articles of Incorporation of the Surviving
Corporation until altered, amended, or repealed as provided therein or as
provided by law.
9. Bylaws. The Bylaws of Marmion Industries existing on the Effective
------
Date, a copy of which is attached hereto as Exhibit B and incorporated herein
---------
for all purposes, shall continue in full force as the Bylaws of the Surviving
Corporation until altered, amended, or repealed as provided therein or as
provided by law.
(a) Copies of the Plan of Merger. A copy of this Plan of Merger is
------------------------------
on file at 9103 Emmott Road, Building 6, Suite A, Houston Texas, 77040, the
principal offices of International Trust, and 9103 Emmott Road, Building 6,
Suite A, Houston Texas, 77040, the principal offices of Marmion Industries. A
copy of this Plan of Merger will be furnished to any stockholder of
International Trust or Marmion Industries, on written request and without cost.
10. Contractual Consents Needed. The parties to this Plan of Merger shall
---------------------------
have obtained, at or prior to the Effective Date, all consents required for the
consummation of the transactions contemplated by this Plan of Merger from any
party to any contract, agreement, instrument, lease, license, arrangement, or
understanding to which any of them is a party, or to which any of their
respective businesses, properties, or assets are subject.
11. Notices. All notices, requests, demands, and other communications
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hereunder shall be in writing and delivered personally or sent by registered or
certified United States mail, return receipt requested with postage prepaid, or
by telecopy or e-mail, if to International Trust, addressed to Wilbert H.
Marmion at 9103 Emmott Road, Building 6, Suite A, Houston Texas, 77040,
telecopier (713) 466-6742,
2
and e-mail bmarmion@swell.net; and if to Marmion Industries, addressed to
Wilbert H. Marmion at 9103 Emmott Road, Building 6, Suite A, Houston Texas,
77040, telecopier (713) 466-6742, and e-mail bmarmion@swell.net. Any party
hereto may change its address upon 10 days' written notice to any other party
hereto.
12. Legal Construction. In case any one or more of the provisions
-------------------
contained in this Plan of Merger shall for any reason be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provisions hereof, and this Plan of
Merger shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.
13. Benefit. All the terms and provisions of this Plan of Merger shall be
-------
binding upon and inure to the benefit of and be enforceable by the parties
hereto, and their successors and permitted assigns.
14. Law Governing. This Plan of Merger shall be construed and governed by
-------------
the laws of the State of Nevada, and all obligations hereunder shall be deemed
performable in Houston, Texas.
15. Perfection of Title. The parties hereto shall do all other acts and
---------------------
things that may be reasonably necessary or proper, fully or more fully, to
evidence, complete or perfect this Plan of Merger, and to carry out the intent
of this Plan of Merger.
16. Cumulative Rights. The rights and remedies of any party under this
------------------
Plan of Merger and the instruments executed or to be executed in connection
herewith, or any of them, shall be cumulative and the exercise or partial
exercise of any such right or remedy shall not preclude the exercise of any
other right or remedy.
17. Waiver. No course of dealing on the part of any party hereto or its
------
agents, nor any failure or delay by any such party with respect to exercising
any right, power or privilege of such party under this Plan of Merger or any
instrument referred to herein shall operate as a waiver thereof, and any single
or partial exercise of any such right, power or privilege shall not preclude any
later exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
18. Construction. Whenever used herein, the singular number shall include
------------
the plural, the plural number shall include the singular, and the masculine
gender shall include the feminine.
19. Multiple Counterparts. This Plan of Merger may be executed in one or
----------------------
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Plan of Merger on May
26, 2004.
INTERNATIONAL TRUST AND
FINANCIAL SYSTEMS, INC.
By
--------------------------------------
Wilbert H. Marmion, President
MARMION INDUSTRIES CORP.
By
--------------------------------------
Wilbert H. Marmion, President
3
Attachments:
- -----------
Exhibit A -Articles of Incorporation of Marmion Industries Corp.
Exhibit B -Bylaws of Marmion Industries Corp.
4
EXHIBIT A
ARTICLES OF INCORPORATION OF
MARMION INDUSTRIES CORP.,
A NEVADA CORPORATION
DEAN HELLER
Secretary of State
[STATE SEAL 204 North Carson Street
OF NEVADA] Carson City, Nevada 89701-4299
(775) 684 5708
Website: secretaryofstate.biz
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| |
| ARTICLES OF INCORPORATION |
| (PURSUANT TO NRS 78) |
| |
- ---------------------------------------------
Important: Read attached instructions before completing form. ABOVE SPACE IS FOR OFFICE USE ONLY
- -----------------------------------------------------------------------------------------------------------------
1. Name of | MARMION INDUSTRIES CORP. |
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Corporation: | |
------------ | |
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2. Resident Agent | Capitol Corporate Services, Inc. |
-------------- | -------------------------------------------------------------------------------|
Name and Street | Name |
--------------- | |
Address: | 202 South Minnesota Carson City NEVADA 89703 |
-------- | ----------------------------------------------- ----------- ------ -------- |
(must be a Nevada address | Street Address City Zip Code |
------------------------- | |
where process may be | |
-------------------- | ----------------------------------------------- ----------- ------ -------- |
served) | Optional Mailing Address City State Zip Code |
------- | |
- -------------------------------|--------------------------------------------------------------------------------|
3. Shares: | |
------- | |
number of shares | |
---------------- | |
corporation | Number of shares Number of shares |
----------- | with par value: 2,000,000,000 Par value: $ 0.001 without par value: None |
authorized to issue | ------------- ----- ---- |
------------------- | |
- -------------------------------|--------------------------------------------------------------------------------|
4. Names & | 1. Wilbert H. Marmion |
------- | --------------------------------------------------------------------------|
Addresses, | Name |
---------- | |
of Board of | 9103 Emmott Road, Building 6, Suite A Houston TX 77040 |
----------- | ----------------------------------------------- ----------- ------ -------- |
Directors/Trustees: | Street Address City State Zip Code |
------------------- | |
(attach additional page | 2. Ellen Raidl |
----------------------- | --------------------------------------------------------------------------|
there is more than 3 | Name |
-------------------- | |
directors/trustees) | 9103 Emmott Road, Building 6, Suite A Houston TX 77040 |
------------------- | ----------------------------------------------- ----------- ------ -------- |
| Street Address City State Zip Code |
| |
| 3. John Royston |
| --------------------------------------------------------------------------|
| Name |
| |
| 9103 Emmott Road, Building 6, Suite A Houston TX 77040 |
| ----------------------------------------------- ----------- ------ -------- |
| Street Address City State Zip Code |
- -------------------------------|--------------------------------------------------------------------------------|
5. Purpose: | The purpose of this Corporation shall be: |
-------- | |
(optional-see | -------------------------------------------------------------------------------|
------------- | |
instructions) | |
------------- | |
- -------------------------------|--------------------------------------------------------------------------------|
6. Names, Address | Norman T. Reynolds /s/ Norman T. Reynolds |
-------------- | ------------------------------------- ----------------------------------------|
and Signature of | Name |
---------------- | |
Incorporator. | 815 Walker St. Suite 1250 Houston TX 77002 |
------------- | ----------------------------------------------- ----------- ------ -------- |
(attach additional page | Address City State Zip Code |
----------------------- | |
there is more than 1 | |
-------------------- | |
incorporator) | |
------------- | |
- -------------------------------|--------------------------------------------------------------------------------|
7. Certificate of | I hereby accept appointment as Resident Agent for the above named corporation. |
-------------- | |
Acceptance of | |
------------- | ----------------------------------------------------------- ------------------|
Appointment of | Authorized Signature of R. A. or On Behalf of R. A. Company Date |
-------------- | |
Resident Agent: | |
--------------- | |
----------------------------------------------------------------------------------
This form must be accompanied by appropriate fees. See attached fee schedule.
Nevada Secretary of State Form 78 ARTICLES 2003
Revised on: 09/29/03
CONTINUATION FOR ARTICLES OF INCORPORATION
FOR
MARMION INDUSTRIES CORP.
(THE "COMPANY")
CAPITAL STOCK
1. Authorized Stock. The total number of shares of stock which the
-----------------
Company shall have authority to issue is 2,000,000,000, consisting of
1,990,000,000 shares of common stock, par value $0.001 per share (the "Common
Stock"), and 10,000,000 shares of preferred stock, par value $0.001 per share
(the "Preferred Stock").
2. Preferred Stock. The Preferred Stock may be issued from time to time
----------------
in one or more series. The Board of Directors is hereby authorized to create and
provide for the issuance of shares of the Preferred Stock in series and, by
filing a certificate pursuant to the applicable section of the NRS (the
"Preferred Stock Designation"), to establish from time to time the number of
shares to be included in each such series, and to fix the designations, powers,
preferences and rights of the shares of each such series and the qualifications,
limitations or restrictions thereof. The authority of the Board of Directors
with respect to each series shall include, but not be limited to, determination
of the following:
(a) The designation of the series, which may be by distinguishing
number, letter or title.
(b) The number of shares of the series, which number the Board of
Directors may thereafter (except where otherwise provided in the Preferred Stock
Designation) increase or decrease (but not below the number of shares thereof
then outstanding).
(c) Whether dividends, if any, shall be cumulative or noncumulative
and the dividend rate of the series.
(d) The dates at which dividends, if any, shall be payable.
(e) The redemption rights and price or prices, if any, for shares of
the series.
(f) The terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series.
(g) The amounts payable on, and the preferences, if any, of shares of
the series in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Company.
(h) Whether the shares of the series shall be convertible into shares
of any other class or series, or any other security, of the Company or any other
corporation, and, if so, the specification of such other class or series of such
other security, the conversion price or prices or rate or rates, any adjustments
thereof, the date or dates at which such shares shall be convertible and all
other terms and conditions upon which such conversion may be made.
(i) Restrictions on the issuance of shares of the same series or of
any other class or series.
(j) The voting rights, if any, of the holders of shares of the
series.
(k) Such other powers, preferences and relative, participating,
optional and other special rights, and the qualifications, limitations and
restrictions thereof as the Board of Directors shall determine.
3. Common Stock. The Common Stock shall be subject to the express terms
-------------
of the Preferred Stock and any series thereof. Each share of the Common Stock
shall be equal to each other share of the Common Stock.
The holders of shares of the Common Stock shall be entitled to one vote for each
such share upon all questions presented to the stockholders.
4. Voting Rights. Except as may be provided in these Articles of
--------------
Incorporation or in a Preferred Stock Designation, or as may be required by
applicable law, the Common Stock shall have the exclusive right to vote for the
election of directors and for all other purposes, and holders of shares of the
Preferred Stock shall not be entitled to receive notice of any meeting of
stockholders at which they are not entitled to vote. At each election for
directors, every stockholder entitled to vote at such election shall have the
right to vote, in person or by proxy, the number of shares owned by him for as
many persons as there are directors to be elected and for whose election he has
a right to vote. It is expressly prohibited for any stockholder to cumulate
his votes in any election of directors.
5. Denial of Preemptive Rights. No stockholder of the Company shall, by
---------------------------
reason of his holding shares of any class, have any preemptive or preferential
right to purchase or subscribe to any shares of any class of the Company, now or
hereafter to be authorized, or any notes, debentures, bonds, or other securities
convertible into or carrying options or warrants to purchase shares of any
class, now or hereafter to be authorized, whether or not the issuance of any
such shares, or such notes, debentures, bonds or other securities would
adversely affect dividend or voting rights of such stockholder, other than such
rights, if any, as the Board of Directors in its discretion may fix; and the
Board of Directors may issue shares of any class of the Company, or any notes,
debentures, bonds, or other securities convertible into or carrying options or
warrants to purchase shares of any class, without offering any such shares of
any class, either in whole or in part, to the existing stockholders of any
class.
ELECTION OF DIRECTORS
1. Number. The number of directors constituting the initial Board of
------
Directors is three. The business and affairs of the Company shall be conducted
and managed by, or under the direction of, the Board of Directors. The total
number of directors constituting the entire Board of Directors shall be fixed
and may be altered from time to time by or pursuant to a resolution passed by
the Board of Directors.
2. Vacancies. Except as otherwise provided for herein, newly created
---------
directorships resulting from any increase in the authorized number of directors,
and any vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause, may be filled only by the affirmative
vote of a majority of the remaining directors then in office, even though less
than a quorum of the Board of Directors. Any director elected in accordance
with the preceding sentence shall hold office for the remainder of the full term
of the newly created directorship or for the directorship in which the vacancy
occurred, and until such director's successor shall have been duly elected and
qualified, subject to his earlier death, disqualification, resignation or
removal. Subject to the provisions of these Articles of Incorporation, no
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
3. Removal of Directors. Except as otherwise provided in any Preferred
----------------------
Stock Designation, any director may be removed from office only by the
affirmative vote of the holders of a majority or more of the combined voting
power of the then outstanding shares of capital stock of the Company entitled to
vote at a meeting of stockholders called for that purpose, voting together as a
single class.
MEETING OF STOCKHOLDERS
Meetings of stockholders of the Company (the "Stockholder Meetings") may be
held within or without the State of Nevada, as the Bylaws of the Company (the
"Bylaws") may provide. Special Stockholder Meetings may be called only by (a)
the President, (b) the holders of at least 10 percent of all of the shares
entitled to vote at the proposed special meeting, or (c) the Board of Directors
pursuant to a duly adopted resolution. Special Stockholder Meetings may not be
called by any other person or persons or in any other manner. Elections of
directors need not be by written ballot unless the Bylaws shall so provide.
STOCKHOLDER CONSENT
No action that is required or permitted to be taken by the stockholders of
the Company at any annual or special meeting of stockholders may be effected by
written consent of stockholders in lieu of a meeting of stockholders, unless the
action to be effected by written consent of stockholders and the taking of such
action by such written consent have expressly been approved in advance by the
Board of Directors.
LIMITATION OF LIABILITY
Except as otherwise provided in the NRS, a director or officer of the
Company shall not be personally liable to the Company or its stockholders for
damages as a result of any act or failure to act in his capacity as a director
or officer; provided, however, that this Article shall not eliminate or limit
the liability of a director or officer (a) if it is proven that his act or
failure to act constituted a breach of his fiduciary duties and such breach
involved intentional misconduct, fraud or a knowing violation of law, or (b)
under Section 78.300 of the NRS.
If the NRS is amended after the date of filing of these Articles of
Incorporation to authorize corporate action further limiting or eliminating the
personal liability of a director, then the liability of the directors of the
Company shall be limited or eliminated to the fullest extent permitted by the
NRS, as so amended, or a similar successor provision. Any repeal or modification
of this Article by the stockholders of the Company or otherwise shall not
adversely affect any right or protection of a director of the Company existing
at the time of such repeal or modification.
INDEMNIFICATION
1. Discretionary Indemnification. (a) The Company may indemnify any
------------------------------
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, except an action by or in the right
of the Company, by reason of the fact that he is or was a director, officer,
employee or agent of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses,
including attorneys' fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with the action, suit or
proceeding if he: (i) is not liable pursuant to Section 78.138 of the NRS; or
(ii) acted in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, does not, of itself, create a presumption that the person is liable
pursuant to Section 78.138 of the NRS or did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Company, or that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was unlawful.
(b) The Company may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Company to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses, including amounts paid in settlement
and attorneys' fees actually and reasonably incurred by him in connection with
the defense or settlement of the action or suit if he: (i) is not liable
pursuant to Section 78.138 of the NRS; or (ii) acted in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Company. Indemnification may not be made for any claim, issue
or matter as to which such a person has been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable to the
Company or for amounts paid in settlement to the Company, unless and only to the
extent that the court in which the action or suit was brought or other court of
competent jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the courts deem proper.
2. Determination of Discretionary Indemnification. Any discretionary
-------------------------------------------------
indemnification pursuant to Section 1 of this Article "Indemnification", unless
ordered by a court or advanced pursuant to this Section 2, may be
made by the Company only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances. The determination must be made:
(a) By the stockholders;
(b) By the Board of Directors by majority vote of a quorum consisting
of directors who were not parties to the action, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who were
not parties to the action, suit or proceeding so orders, by independent legal
counsel in a written opinion; or
(d) If a quorum consisting of directors who were not parties to the
action, suit or proceeding cannot be obtained, by independent legal counsel in a
written opinion.
The expenses of officers and directors incurred in defending a civil or
criminal action, suit or proceeding must be paid by the Company as they are
incurred in advance of the final disposition of the action, suit or proceeding,
upon receipt of an undertaking by or on behalf of the director or officer to
repay the amount if it is ultimately determined by a court of competent
jurisdiction that he is not entitled to be indemnified by the Company.
3. Mandatory Indemnification. To the extent that a director, officer,
--------------------------
employee or agent of the Company has been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in Section 1 of this
Article IX, or in defense of any claim, issue or matter therein, the Company
shall indemnify him against expenses, including attorneys' fees actually and
reasonably incurred by him in connection with the defense.
4. Non-Exclusivity. The indemnification and advancement of expenses
---------------
authorized in or ordered by a court pursuant to this Article:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any agreement,
vote of stockholders or disinterested directors or otherwise, for either an
action in his official capacity or an action in another capacity while holding
his office, except that indemnification, unless ordered by a court pursuant to
Section 1 of this Article, or for the advancement of expenses made pursuant to
Section 2 of this Article may not be made to or on behalf of any director or
officer if a final adjudication establishes that his acts or omissions involved
intentional misconduct, fraud or a knowing violation of the law and was material
to the cause of action.
(b) Continues for a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors and
administrators of any such person.
5. Insurance. The Company may purchase and maintain insurance or make
---------
other financial arrangements on behalf of any person who is or was a director,
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise for any liability asserted
against him and liability and expenses incurred by him in his capacity as a
director, officer, employee or agent, or arising out of his status as such,
whether or not the Company has the authority to indemnify him against such
liability expenses.
AMENDMENT OF CORPORATE DOCUMENTS
1. Articles of Incorporation. Whenever any vote of the holders of voting
--------------------------
shares of the capital stock of the Company is required by law to amend, alter,
repeal or rescind any provision of these Articles of Incorporation, such
alteration, amendment, repeal or rescission of any provision of these Articles
of Incorporation must be approved by the Board of Directors and by the
affirmative vote of the holders of at least a majority of the combined voting
power of the then outstanding voting shares of capital stock of the Company,
voting together as a single class.
Subject to the provisions hereof, the Company reserves the right at any
time, and from time to time, to amend, alter, repeal or rescind any provision
contained in these Articles of Incorporation in the manner now or hereafter
prescribed by law, and other provisions authorized by the laws of the State of
Nevada at the time in force may be added or inserted, in the manner now or
hereafter prescribed by law; and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to these Articles of Incorporation in their present
form or as hereafter amended are granted subject to the rights reserved in this
Article.
2. Bylaws. In addition to any affirmative vote required by law, any
------
change of the Bylaws may be adopted either (a) by the affirmative vote of the
Board of Directors, or (b) by the stockholders by the affirmative vote of the
holders of at least a majority of the combined voting power of the then
outstanding voting shares of capital stock of the Company, voting together as a
single class.
APPLICATION OF NRS 78.411 TO 78.444, INCLUSIVE
These Articles of Incorporation expressly provide that the Company shall
not be governed by NRS 78.411 to 78.444, inclusive.
EXISTENCE
The Company is to have perpetual existence.
DEAN HELLER FILED# C13989-04
Secretary of State ---------
[STATE SEAL 204 North Carson Street, Suite 1 JUN 03 2004
OF NEVADA] Carson City, Nevada 89701-4299
(775) 684 5708
Website: secretaryofstate.biz
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| |
| CERTIFICATE OF AMENDMENT |
| (PURSUANT TO NRS 78.385 and 78.390) |
| |
- ---------------------------------------------
Important: Read attached instructions before completing form.
ABOVE SPACE IS FOR OFFICE USE ONLY
Certificate of Amendment to Articles of Incorporation
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For Nevada Profit Corporations
------------------------------
(Pursuant to NRS 78.385 and 78.390 - After Issuance of Stock)
1. Name of corporation:
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MARMION INDUSTRIES CORP.
- -------------------------------------------------------------------------------
2. The articles have been amended as follows (provide article numbers, if
available):
- -------------------------------------------------------------------------------
The number of shares the Corporation is authorized to issue is hereby amended
from 2,000,000,000 shares, par value $0.001 per share to 300,000,000 shares, par
value $0.001 per share.
Paragraph 1 of Article titled "Capital Stock" of the Corporation's Articles of
Incorporation is hereby deleted in its entirety and the following substituted in
its place:
1. Authorized Stock. The total number of shares of stock which the Company shall
have authority to issue is 300,000,000, consisting of 290,000,000 shares of
common stock, par value $0.001 per share (the "Common Stock"), and 10,000,000
shares of preferred stock, par value $0.001 per share (the "Preferred Stock").
3. The vote by which the stockholders holding shares in the corporation
entitling them to exercise at least a majority of the voting power, or such
greater proportion of the voting power as may be required in the case of a vote
by classes or series, or as may be required by the provisions of the articles of
incorporation have voted in favor of the amendment is: One share of common stock
-------------------------
4. Effective date of filling (optional):
--------------------------------------
(must not be later than 30 days
after the certificate is filed)
5. Officer Signature (required): /s/ W. H. Marmion
-----------------------------------------------
"If any proposed amendment would alter or change any preference or any relative
or other right given to any class or series of outstanding shares, then the
amendment must be approved the vote, in addition to the affirmative vote
otherwise required, of the holders of shares representing a majority of the
voting power of each class or series affected by the amendment regardless of
limitations or restrictions on the voting power thereof.
IMPORTANT: Failure to include any of the above information and submit the proper
fees may cause this filing to be rejected.
This form must be accompanied by appropriate fees. See attached fee schedule.
Nevada Secretary of State AM Amend 2003
Revised on: 11/03/03
EXHIBIT B
BYLAWS OF
MARMION INDUSTRIES CORP.,
A NEVADA CORPORATION
BYLAWS OF
MARMION INDUSTRIES CORP.
ARTICLE I
OFFICES
1.1. Resident Office. The resident office of Marmion Industries Corp.
---------------
(the "Company") required by Section 78.035 of the Nevada Revised Statutes or any
successor statute (the "NRS") to be maintained in the State of Nevada shall be
the resident office named in the Articles of Incorporation of the Company, as
they may be amended or restated from time to time in accordance with the NRS
(the "Articles of Incorporation").
1.2. Other Offices. The Company may also have offices at such other
--------------
places both within and without the State of Nevada as the Board of Directors of
the Company (the "Board of Directors") may determine from time to time or as the
business of the Company may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1. Place of Meetings. Meetings of the Company's stockholders shall
------------------
be held at such place within or without the State of Nevada as may be designated
by the Board of Directors or the officer calling the meeting, or, in the absence
of such designation, at the principal office of the Company.
2.2. Annual Meeting. An annual meeting of the stockholders, for the
---------------
election of directors to succeed those whose terms expire or to fill vacancies
and for the transaction of such other business as may properly come before the
meeting, shall be held on such date and at such time as the Board of Directors
shall fix and set forth in the notice of the meeting, which date shall be within
13 months subsequent to the last annual meeting of stockholders. At the annual
meeting of the stockholders, only such business shall be conducted as shall have
been properly brought before the annual meeting as set forth in Paragraph 2.8
hereof. Failure to hold the annual meeting at the designated time shall not
work a dissolution of the Company.
2.3. Special Meetings. Subject to the rights of the holders of any
-----------------
series of the Company's preferred stock, par value $0.001 per share (the
"Preferred Stock"), as designated in any resolutions adopted by the Board of
Directors and filed with the State of Nevada (a "Preferred Stock Designation"),
special meetings of the stockholders may be called at any time by those persons
set forth in the Articles of Incorporation. Upon written request of any person
or persons who have duly called a special meeting, it shall be the duty of the
Secretary to fix the date of the meeting to be held not less than 10 nor more
than 60 days after the receipt of the request and to give due notice thereof, as
required by the NRS. If the Secretary shall neglect or refuse to fix the date
of the meeting and give notice thereof, the person or persons calling the
meeting may do so.
2.4. Notice of Meeting. Written or printed notice of all meetings,
-------------------
stating the place, day and hour of the meeting and the purpose or purposes for
which the meeting is called, shall be delivered not less than 10 nor more than
60 days before the date of the meeting, either personally or by mail, by or at
the direction of the Chairman of the Board or Secretary, to each stockholder
entitled to vote at such meeting. If mailed, such notice shall be deemed to be
delivered to a stockholder when deposited in the United States mail addressed to
such stockholder at such stockholder's address as it appears on the stock
transfer records of the Company, with postage thereon prepaid.
2.5. Registered Holders of Shares; Closing of Share Transfer Records;
-----------------------------------------------------------------
and Record Date.
- -----------------
(a) Registered Holders as Owners. Unless otherwise provided
-------------------------------
under the NRS, the Company may regard the person in whose name any shares are
registered in the stock transfer records of the Company at any particular time
(including, without limitation, as of a record date fixed pursuant to
subparagraph (b) of this Paragraph 2.5) as the owner of such shares at that time
for purposes of voting, receiving distributions thereon or notices in respect
thereof, transferring such shares, exercising rights of dissent with respect to
such shares, entering
1
into agreements with respect to such shares, or giving proxies with respect to
such shares; and neither the Company nor any of its officers, directors,
employees or agents shall be liable for regarding that person as the owner of
such shares at that time for those purposes, regardless of whether that person
possesses a certificate for such shares.
(b) Record Date. For the purpose of determining stockholders
------------
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive a distribution by the Company (other
than a distribution involving a purchase or redemption by the Company of any of
its own shares) or a share dividend, or in order to make a determination of
stockholders for any other proper purpose, the Board of Directors may fix in
advance a date as the record date for any such determination of stockholders,
such date in any case to be not more than 60 days and not less than 10 days,
prior to the date on which the particular action requiring such determination of
stockholders is to be taken. The Board of Directors shall not close the books
of the Company against transfers of shares during the whole or any part of such
period.
If the Board of Directors does not fix a record date for any meeting of the
stockholders, the record date for determining stockholders entitled to notice of
or to vote at such meeting shall be at the close of business on the day next
preceding the day on which notice is given, or, if in accordance with Paragraph
7.3 of these Bylaws notice is waived, at the close of business on the day next
preceding the day on which the meeting is held.
2.6. Quorum of Stockholders; Adjournment. Unless otherwise provided
-------------------------------------
in the Articles of Incorporation, a majority of the outstanding shares of
capital stock of the Company entitled to vote, present in person or represented
by proxy, shall constitute a quorum at any meeting of the stockholders, and the
stockholders present at any duly convened meeting may continue to do business
until adjournment notwithstanding any withdrawal from the meeting of holders of
shares counted in determining the existence of a quorum. Unless otherwise
provided in the Articles of Incorporation or these Bylaws, any meeting of the
stockholders may be adjourned from time to time by the chairman of the meeting
or the holders of a majority of the issued and outstanding stock, present in
person or represented by proxy, whether or not a quorum is present, without
notice other than by announcement at the meeting at which such adjournment is
taken, and at any such adjourned meeting at which a quorum shall be present any
action may be taken that could have been taken at the meeting originally called;
provided that if the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the adjourned meeting.
2.7. Voting by Stockholders.
------------------------
(a) Voting on Matters Other than the Election of Directors.
-----------------------------------------------------------
With respect to any matters as to which no other voting requirement is specified
by the NRS, the Articles of Incorporation or these Bylaws, and, subject to the
rights of the holders of any series of Preferred Stock to elect directors under
specific circumstances, the affirmative vote required for stockholder action
shall be that of a majority of the shares present in person or represented by
proxy at the meeting (as counted for purposes of determining the existence of a
quorum at the meeting). In the case of a matter submitted for a vote of the
stockholders as to which a stockholder approval requirement is applicable under
the stockholder approval policy of any stock exchange or quotation system on
which the capital stock of the Company is traded or quoted, the requirements
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
any provision of the Internal Revenue Code, in each case for which no higher
voting requirement is specified by the NRS, the Articles of Incorporation or
these Bylaws, the vote required for approval shall be the requisite vote
specified in such stockholder approval policy, the Exchange Act or Internal
Revenue Code provision, as the case may be (or the highest such requirement if
more than one is applicable).
(b) Voting in the Election of Directors. Unless otherwise
----------------------------------------
provided in the Articles of Incorporation or these Bylaws in accordance with the
NRS, directors shall be elected by a plurality of the votes cast by the holders
of outstanding shares of capital stock of the Company entitled to vote in the
election of directors at a meeting of stockholders at which a quorum is present.
(c) Consents in Lieu of Meeting. Pursuant to the Articles of
------------------------------
Incorporation, no action that is required or permitted to be taken by the
stockholders of the Company at any annual or special meeting of
2
stockholders may be effected by the written consent of stockholders in lieu of a
meeting, unless the action to be effected by the written consent of stockholders
and the taking of such action by written consent have been expressly approved in
advance by the Board of Directors.
(d) Other. The Board of Directors, in its discretion, or the
-----
officer of the Company presiding at a meeting of stockholders of the Company, in
his discretion, may require that any votes cast at such meeting shall be cast by
written ballot.
2.8. Business to be Conducted at Annual or Special Stockholder
-----------------------------------------------------------------
Meetings. At any annual or special meeting of stockholders, only such business
- --------
shall be conducted, and only such proposals shall be acted upon, as shall have
been disclosed in the notice delivered to the stockholders with respect to such
meeting.
2.9. Proxies. Each stockholder entitled to vote at a meeting of
-------
stockholders may authorize another person or persons to act for him by proxy.
Proxies for use at any meeting of stockholders shall be filed with the
Secretary, or such other officer as the Board of Directors may from time to time
determine by resolution, before or at the time of the meeting. All proxies
shall be received and taken charge of and all ballots shall be received and
canvassed by the secretary of the meeting who shall decide all questions
relating to the qualification of voters, the validity of the proxies, and the
acceptance or rejection of votes, unless an inspector or inspectors shall have
been appointed by the chairman of the meeting, in which event such inspector or
inspectors shall decide all such questions.
2.10. Approval or Ratification of Acts or Contracts by Stockholders.
----------------------------------------------------------------
The Board of Directors in its discretion may submit any act or contract for
approval or ratification at any annual meeting of the stockholders, or at any
special meeting of the stockholders called for the purpose of considering any
such act or contract, and any act or contract that shall be approved or be
ratified by the vote of the stockholders holding a majority of the issued and
outstanding shares of stock of the Company entitled to vote and present in
person or by proxy at such meeting (provided that a quorum is present), shall be
as valid and as binding upon the Company and upon all the stockholders as if it
has been approved or ratified by every stockholder of the Company.
2.11. Inspectors of Election. The Company shall, in advance of any
------------------------
meeting of stockholders, appoint one or more inspectors of election, who may be
employees of the Company, to act at the meeting or any adjournment thereof and
to make a written report thereof. The Company may designate one or more persons
as alternate inspectors to replace any inspector who fails to act. If no
inspector so appointed or designated is able to act at a meeting of
stockholders, the chairman or the person presiding at the meeting shall appoint
one or more inspectors to act at the meeting. Each inspector, before entering
upon the discharge of his duties, shall take and sign an oath to execute
faithfully the duties of inspector with strict impartiality and according to the
best of his ability.
The inspector or inspectors so appointed or designated shall: (a) ascertain
the number of shares of capital stock of the Company outstanding and the voting
power of each such share; (b) determine the shares of capital stock of the
Company represented at the meeting and the validity of proxies and ballots; (c)
count all votes and ballots; (d) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the
inspectors; and (e) certify their determination of the number of shares of the
capital stock of the Company represented at the meeting and such inspectors'
count of all votes and ballots. Such certification and report shall specify
such other information as may be required by law. In determining the validity
and counting of proxies and ballots cast at any meeting of stockholders of the
Company, the inspectors may consider such information as is permitted by
applicable law. No person who is a candidate for an office at an election may
serve as an inspector at such election.
3
ARTICLE III
DIRECTORS
3.1. Powers, Number, Classification and Tenure.
---------------------------------------------
(a) The powers of the Company shall be exercised by or under the
authority of, and the business and affairs of the Company shall be managed under
the direction of, the Board of Directors. Each director shall hold office for
the full term for which such director is elected and until such director's
successor shall have been duly elected and qualified or until his earlier death
or resignation or removal in accordance with the Articles of Incorporation or
these Bylaws.
(b) Within the limits specified in the Articles of
Incorporation, and subject to the rights of the holders of any series of
Preferred Stock to elect directors under specific circumstances, the number of
directors that shall constitute the whole Board of Directors shall be fixed by,
and may be increased or decreased from time to time by, the affirmative vote of
a majority of the members at any time constituting the Board of Directors.
Except as provided in the Articles of Incorporation, and subject to the rights
of the holders of any series of Preferred Stock to elect directors under
specific circumstances, newly created directorships resulting from any increase
in the number of directors and any vacancies on the Board of Directors resulting
from death, resignation, disqualification, removal or other cause shall be
filled by the affirmative vote of a majority of the remaining directors then in
office, even though less than a quorum of the Board of Directors. Any director
elected in accordance with the preceding sentence shall hold office for the
remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until such director's
successor shall have been elected and qualified or until his earlier death,
resignation or removal. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director.
3.2. Qualifications. Directors need not be residents of the State of
--------------
Nevada or stockholders of the Company.
3.3. Place of Meeting; Order of Business. Except as otherwise
----------------------------------------
provided by law, meetings of the Board of Directors, regular or special, may be
held either within or without the State of Nevada, at whatever place is
specified by the person or persons calling the meeting. In the absence of
specific designation, the meetings shall be held at the principal office of the
Company. At all meetings of the Board of Directors, business shall be
transacted in such order as shall from time to time be determined by the
Chairman of the Board, or in his absence by the President, or by resolution of
the Board of Directors.
3.4. Regular Meetings. Regular meetings of the Board of Directors
-----------------
shall be held, in each case, at such hour and on such day as may be fixed by
resolution of the Board of Directors, without further notice of such meetings.
The time or place of holding regular meetings of the Board of Directors may be
changed by the Chairman of the Board by giving written notice thereof as
provided in Paragraph 3.6 hereof.
3.5. Special Meetings. Special meetings of the Board of Directors
-----------------
shall be held, whenever called by the Chairman of the Board or by resolution
adopted by the Board of Directors, in each case, at such hour and on such day as
may be stated in the notice of the meeting.
3.6. Attendance at and Notice of Meetings. Written notice of the time
------------------------------------
and place of, and general nature of the business to be transacted at, all
special meetings of the Board of Directors, and written notice of any change in
the time or place of holding the regular meetings of the Board of Directors,
shall be given to each director personally or by mail or by telegraph,
telecopier or similar communication at least one day before the day of the
meeting; provided, however, that notice of any meeting need not be given to any
director if waived by him in writing, or if he shall be present at such meeting.
Participation in a meeting of the Board of Directors shall constitute presence
in person at such meeting, except where a person participates in the meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
4
3.7. Quorum of and Action by Directors. A majority of the directors
-----------------------------------
in office shall constitute a quorum of the Board of Directors for the
transaction of business; but a lesser number may adjourn from day to day until a
quorum is present. Except as otherwise provided by law or in these Bylaws, all
questions shall be decided by the vote of a majority of the directors present at
a meeting at which a quorum is present.
3.8. Board and Committee Action 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 or any committee
thereof may be taken without a meeting if a consent in writing, setting forth
the action so taken, is signed by all the members of the Board of Directors or
such committee, as the case may be, and shall be filed with the Secretary.
3.9. Board and Committee Telephone Meetings. Subject to the
------------------------------------------
provisions required or permitted by the NRS for notice of meetings, unless
otherwise restricted by the Articles of Incorporation or these Bylaws, members
of the Board of Directors, or members of any committee designated by the Board
of Directors, may participate in and hold a meeting of such Board of Directors
or committee by means of 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 pursuant to this Paragraph 3.9 shall
constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
3.10. Compensation. Directors shall receive such compensation for
------------
their services as shall be determined by the Board of Directors.
3.11. Removal. Directors may be removed from office in the matter set
-------
forth in the Articles of Incorporation, subject to the rights of the holders of
any series of Preferred Stock to elect directors under specific circumstances.
3.12. Committees of the Board of Directors.
-----------------------------------------
(a) The Board of Directors, by resolution adopted by a majority
of the full Board of Directors, may designate from among its members one or more
committees (in addition to those listed below), each of which shall be comprised
of one or more of its members, and may designate one or more of its members as
alternate members of any committee, who may, subject to any limitations by the
Board of Directors, replace absent or disqualified members at any meeting of
that committee. Any such committee, to the extent provided in such resolution
or in the Articles of Incorporation or these Bylaws, shall have and may exercise
all of the authority of the Board of Directors to the extent permitted by the
NRS, including, without limitation, the power and authority to declare a
dividend, to authorize the issuance of stock or to adopt a plan of merger
pursuant to Section 78.125 of the NRS. Any such committee may authorize the
seal of the Company to be affixed to all papers which may require it. In
addition to the above, such committee or committees shall have such other powers
and limitations of authority as may be determined from time to time by
resolution adopted by the Board of Directors.
(b) The Board of Directors shall have the power at any time to
change the membership of any such committee and to fill vacancies in it. A
majority of the number of members of any such committee shall constitute a
quorum for the transaction of business unless a greater number is required by a
resolution adopted by the Board of Directors. The act of the majority of the
members of a committee present at any meeting at which a quorum is present shall
be the act of such committee, unless the act of a greater number is required by
a resolution adopted by the Board of Directors. Each such committee may elect a
chairman and appoint such subcommittees and assistants as it may deem necessary.
Except as otherwise provided by the Board of Directors, meetings of any
committee shall be conducted in accordance with Paragraphs 3.4, 3.5, 3.6, 3.7,
3.8, 3.9 and 7.3 hereof. In the absence or disqualification of a member of a
committee, the member or members present at any meeting and not disqualified
from voting, whether or not constituting a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
the absent or disqualified member. Any member of any such committee elected or
appointed by the Board of Directors may be removed by the Board of Directors
whenever in its judgment the best interests of the Company will be served
thereby, but such removal shall be without prejudice to
5
the contract rights, if any, of the person so removed. Election or appointment
of a member of a committee shall not of itself create contract rights.
(c) Any action taken by any committee of the Board of Directors
shall promptly be recorded in the minutes and filed with the Secretary.
(d) Notwithstanding anything herein contained to the contrary,
the composition and powers of any committee of the Board of Directors are
expressly subject to the requirements of any stock exchange or quotation system
on which the capital stock of the Company is traded or quoted, or the Exchange
Act.
(e) Executive Committee. The Board of Directors may create an
--------------------
Executive Committee of the Board of Directors, which committee shall have and
may exercise all the powers and authority of the Board of Directors between
regular or special meetings of the Board of Directors in the management of the
business and affairs of the Company, except to the extent limited by Nevada law.
Without limiting the generality of the foregoing, the Executive Committee shall
have the power and authority to (i) declare dividends on any class of capital
stock of the Company, (ii) authorize the issuance of capital stock of the
Company, (iii) adopt plans of merger, and (iv) in reference to amending the
Articles of Incorporation, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of capital stock adopted by the
Board of Directors, fix the designations and any of the preferences or rights of
such shares relating to dividends, redemptions, dissolution, any distribution of
assets of the Company or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the Company or fix the number of shares of
any series of stock or authorize the increase or decrease of the shares of any
series.
(f) Audit Committee. The Board of Directors may create an Audit
---------------
Committee of the Board of Directors whose members shall consist solely of
directors who are not employees or affiliates of the Company and have no
relationship with the Company that would, in the judgment of the Board of
Directors, interfere with their exercise of independent judgment as a member of
such committee. The Audit Committee shall have and may exercise the power and
authority to recommend to the Board of Directors the accounting firm to be
selected by the Board of Directors or to be recommended by it for stockholder
approval, as independent auditor of the financial statements of the Company and
its subsidiaries, and to act on behalf of the Board of Directors in meeting and
reviewing with the independent auditors, the chief accounting officer, the chief
internal auditor, if any, and the appropriate corporate officers, matters
relating to corporate financial reporting and accounting procedures and
policies, adequacy of financial, accounting and operating controls and the scope
of the respective audits of the independent auditors and the internal auditor,
if any. The Audit Committee shall also review the results of such audits with
the respective auditors and shall report the results of those reviews to the
Board of Directors. The Audit Committee shall submit to the Board of Directors
any recommendations it may have from time to time with respect to financial
reporting and accounting practices and policies and financial, accounting and
operational controls and safeguards. The Audit Committee may submit to the
Compensation Committee any recommendations it may have with respect to the
compensation of the chief accounting officer and the chief internal auditor, if
any. The Board of Directors shall, by resolution adopted by a majority of the
Board of Directors, designate not less than two of its qualifying members from
time to time to constitute members of the Audit Committee.
(g) Nominating Committee. The Board of Directors may create a
---------------------
Nominating Committee of the Board of Directors, which committee shall have and
may exercise the power and authority to recommend to the Board of Directors
prior to each annual meeting of the stockholders of the Company: (i) the
appropriate size and composition of the Board of Directors; and (ii) nominees:
(1) for election to the Board of Directors for whom the Company should solicit
proxies; (2) to serve as proxies in connection with the annual stockholders'
meeting; and (3) for election to all committees of the Board of Directors other
than the Nominating Committee. The Board of Directors shall, by resolution
adopted by a majority of the Board, designate one or more of its members from
time to time to constitute members of the Nominating Committee.
(h) Compensation Committee. The Board of Directors may create a
----------------------
Compensation Committee of the Board of Directors, whose members shall consist
solely of directors who are not employees or affiliates of the Company and have
no relationship with the Company that would, in the judgment of the Board of
6
Directors, interfere with their exercise of independent judgment as a member of
such committee. The Compensation Committee shall have and may exercise all the
power and authority to (i) establish a general compensation policy for the
officers and employees of the Company, including to establish and at least
annually review officers' salaries and levels of officers' participation in the
benefit plans of the Company, (ii) prepare any reports that may be required by
the regulations of the Securities and Exchange Commission or otherwise relating
to officer compensation, (iii) approve any increases in directors' fees, and
(iv) exercise all other powers of the Board of Directors with respect to matters
involving the compensation of employees and the employee benefits of the Company
as shall be delegated by the Board of Directors to the Compensation Committee
from time to time. Without limiting the generality of the foregoing, the
Compensation Committee shall have the power and authority to authorize the
issuance of capital stock of the Company pursuant to any compensation or benefit
plan or arrangement adopted or entered into by the Company. The Board of
Directors shall, by resolution adopted by a majority of the Board, designate two
or more of its qualifying members from time to time to constitute members of the
Compensation Committee.
ARTICLE IV
OFFICERS
4.1. Designation. The officers of the Company shall consist of a
-----------
Chairman of the Board, Chief Executive Officer, President, Chief Operating
Officer, Secretary, Chief Financial Officer, Treasurer, Controller and such
Executive, Senior or other Vice Presidents, Assistant Secretaries, Assistant
Treasurers, Assistant Controllers and other officers as may be elected or
appointed by the Board of Directors from time to time. Any number of offices
may be held by the same person.
4.2. Chairman of the Board. The Chairman of the Board shall be the
------------------------
Chief Executive Officer of the Company and shall preside at all meetings of the
stockholders and of the Board of Directors. Except where by law the signature
of the President is required, the Chairman of the Board shall possess the same
power as the President to sign all contracts, certificates and other instruments
of the Company which may be authorized by the Board of Directors. The Chairman
of the Board shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors. In the absence or incapacity to act of the President, the
Chairman of the Board shall serve as acting President, and when so acting, shall
have all the powers of and be subject to the restrictions of such office.
4.3. President. The President shall be the Chief Operating Officer of
---------
the Company and shall have general supervision and control of the business,
affairs and properties of the Company and its general officers, and shall see
that all orders and resolutions of the Board of Directors are carried into
effect. He shall have the power to appoint and remove all subordinate officers,
agents and employees, except those elected or appointed by the Board of
Directors, and shall execute all bonds, mortgages, contracts and other
instruments of the Company requiring a seal, under the seal of the Company,
except where required or permitted by law to be otherwise signed and executed
and except that the other officers of the Company may sign and execute documents
when so authorized by these Bylaws, the Board of Directors or the President.
The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors. In the incapacity to act of the Chairman of the Board, the
President shall serve as acting Chairman of the Board, and when so acting, shall
have all the powers of and be subject to the restrictions of such office.
4.4. Chief Operating Officer. As the Chief Operating Officer, the
-------------------------
President shall have general charge and supervision of the day to day operations
of the Company (subject to the direction of the Board of Directors), and, in
general, shall perform such other duties as are incident to the office of a
chief operating officer of a corporation, including those duties customarily
performed by persons occupying such office, and shall perform such other duties
as, from time to time, may be assigned to him by the Board of Directors.
4.5. Vice President. The Board of Directors may appoint such Vice
---------------
Presidents as may be recommended by the President or as the directors deem
necessary or appropriate. Vice Presidents may be designated as Senior Vice
Presidents, Executive Vice Presidents or some other designation as the Board of
Directors deems appropriate (each a "Vice President"). Each Vice President
shall perform such duties as the Board of
7
Directors may from time to time prescribe and have such other powers as the
President may from time to time prescribe.
4.6. Chief Financial Officer. The Chief Financial Officer shall be
-------------------------
the chief accounting officer of the Company and shall have general charge and
supervision of the day to day financial operations of the Company (subject to
the direction of the Board of Directors), and, in general, shall perform such
other duties as are incident to the office of a chief financial officer of a
corporation, including those duties customarily performed by persons occupying
such office, and shall perform such other duties as, from time to time, may be
assigned to him by the Board of Directors or the Audit Committee.
4.7. Secretary. The Secretary shall attend the meetings of the Board
---------
of Directors and all meetings of stockholders and record the proceedings thereof
in a book or books to be kept for that purpose; the Secretary shall also perform
like duties for the standing committees when required. The Secretary shall
give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or the President, under whose
supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special
meetings of the Board of Directors, and if there be no Assistant Secretary, then
the Chairman of the Board may choose another officer to cause such notice to be
given. The Secretary shall have custody of the seal of the Company and the
Secretary or any Assistant Secretary, if there be one, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be
attested by the signature of the Secretary or by the signature of any such
Assistant Secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the Company and to attest the affixing by his
signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed
are properly kept or filed, as the case may be.
4.8. Treasurer. The Treasurer shall have the custody of the Company's
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funds and securities and shall keep full and accurate accounts of receipt and
disbursements in books belonging to the Company and shall deposit all moneys and
other valuable effects in the name and to the credit of the Company in such
depositories as may be designated by the Chief Financial Officer or the Board of
Directors. The Treasurer shall disburse the funds of the Company as may be
ordered by the Chief Financial Officer or the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the Chairman of the Board
and the Board of Directors, at its regular meeting, or when the Board of
Directors so requires, an account of all his transactions as Treasurer and of
the liquidity of the Company. If required by the Board of Directors, the
Treasurer shall give the Company a bond in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Company,
in case of his death, resignation, retirement or removal from office, of all
books papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Company.
4.9. Controller. The Controller, if there is one, shall maintain
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records of all assets, liabilities, and transactions of the Company and shall be
responsible for the design, installation and maintenance of accounting and cost
control systems and procedures for the Company and shall perform such other
duties and have such other powers as from time to time may be assigned to him by
the Chief Financial Officer, Board of Directors or the Audit Committee.
4.10. Assistant Secretaries. Except as may be otherwise provided in
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these Bylaws, Assistant Secretaries, if there be any, shall perform such duties
and have such powers as from time to time may be assigned to them by the Board
of Directors, the President, any Vice President, or the Secretary, and in the
absence of the Secretary or in the event of his disability or refusal to act,
shall perform the duties of the Secretary, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Secretary.
4.11. Assistant Treasurers. Assistant Treasurers, if there be any,
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shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the President or the Treasurer, and
in the absence of the Treasurer or in the event of his disability or refusal to
act, shall perform the duties of the Treasurer, and when so acting, shall have
all the powers of and be subject to all the restrictions upon the Treasurer.
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If required by the Board of Directors, an Assistant Treasurer shall give the
Company a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the Company, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Company.
4.12. Assistant Controllers. Except as may be otherwise provided in
----------------------
these Bylaws, Assistant Controllers, if there be any, shall perform such duties
and have such powers as from time to time may be assigned to them by the Board
of Directors, the President, any Vice President, or the Controller, and in the
absence of the Controller or in the event of his disability or refusal to act,
shall perform the duties of the Controller, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Controller.
4.13. Other Officers. Such other officers as the Board of Directors
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may choose shall perform such duties and have such powers, subordinate to those
powers specifically delegated to certain officers in these Bylaws, as from time
to time may be assigned to them by the Board of Directors. The President of the
Company shall have the power to choose such other officers and to prescribe
their respective duties and powers, subject to control by the Board of
Directors.
4.14. Vacancies. Whenever any vacancies shall occur in any office by
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death, resignation, increase in the number of offices of the Company, or
otherwise, the same shall be filled by the Board of Directors (or the President,
in accordance with Paragraph 4.3 of these Bylaws, subject to control by the
Board of Directors), and the officer so appointed shall hold office until such
officer's successor is elected or appointed in accordance with these Bylaws or
until his earlier death, resignation or removal.
4.15. Removal. Any officer or agent of the Company may be removed by
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the Board of Directors whenever in its judgment the best interests of the
Company will be served thereby, but such removal shall be without prejudice to
the contract rights, if any, of the person so removed. Election or appointment
of an officer or agent shall not of itself create contract rights.
4.16. Action with Respect to Securities of Other Corporations. Unless
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otherwise directed by the Board of Directors, the Chairman of the Board, the
President, any Vice President and the Treasurer of the Company shall each have
power to vote and otherwise act on behalf of the Company, in person or by proxy,
at any meeting of security holders of or with respect to any action of security
holders of any other corporation in which the Company may hold securities and
otherwise to exercise any and all rights and powers which the Company may
possess by reason of its ownership of securities in such other corporation.
ARTICLE V
CAPITAL STOCK
5.1. Certificates for Shares. The certificates for shares of the
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capital stock of the Company shall be in such form as may be approved by the
Board of Directors from time to time. The Company shall deliver one or more
certificates to each of the Company's stockholders, which shall represent the
number of shares to which such stockholder is entitled. Certificates shall be
signed by the Chairman of the Board, the President or a Vice President and
either the Secretary or an Assistant Secretary, and may bear the seal of the
Company or a facsimile thereof. The signatures of such officers upon a
certificate may be facsimiles. The stock record books and the blank stock
certificates shall be kept by the Secretary, or at the office of such transfer
agent or transfer agents as the Board of Directors may from time to time by
resolution determine. In case any officer who has signed or whose facsimile
signature has been placed upon such certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the Company with
the same effect as if such person were such officer at the date of its issuance.
5.2. Multiple Classes of Stock. As the Company is authorized to issue
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more than one class of capital stock and more than one series of preferred
stock, a statement of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualification, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
each of
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the certificates the Company issues to represent such class or series of stock;
provided that, to the extent allowed by law, in lieu of such statement, the face
or back of such certificates may state that the Company will furnish a copy of
such statement without charge to each requesting stockholder.
5.3. Transfer of Shares. The shares of stock of the Company shall be
-------------------
transferable only on the books of the Company by the holders thereof in person
or by their duly authorized attorneys or legal representatives upon surrender
and cancellation of certificates for a like number of shares.
5.4. Ownership of Shares. As the Company is entitled to treat the
---------------------
holder of record of any share or shares of capital stock as the holder in fact
thereof under Paragraph 2.5 hereof, the Company 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 the State of Nevada.
5.5. Regulations Regarding Certificates. The Board of Directors shall
----------------------------------
have the power and authority to make all such rules and regulations as they may
deem expedient concerning the issue, transfer and registration or the
replacement of certificates for shares of capital stock of the Company.
5.6. Lost or Destroyed Certificates. The Board of Directors may
---------------------------------
determine the conditions upon which a new certificate representing shares of the
capital stock of the Company may be issued in place of a certificate which is
alleged to have been lost, stolen or destroyed; and may, in its discretion,
require the owner of such certificate or his legal representative to give bond,
with sufficient surety, to indemnify the Company and each transfer agent and
registrar against any and all losses or claims that may arise by reason of the
issue of a new certificate in the place of the one so lost, stolen or destroyed.
ARTICLE VI
INDEMNIFICATION
6.1. General. The Company shall indemnify its directors, officers,
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employees, agents and others as provided in the Articles of Incorporation.
6.2. Request for Indemnification. A party requesting indemnification
----------------------------
(the "Indemnitee") shall submit notice of such request in writing to the
Secretary of the Company. Such notice of request for indemnification shall
contain sufficient information to reasonably inform the Company about the nature
and extent of the indemnification or advance sought by the Indemnitee. The
Secretary shall promptly advise the Board of Directors of any such request.
6.3. Extension of Rights. No amendment, alteration or repeal of this
--------------------
Article VI or any provision hereof shall be effective as to any Indemnitee for
acts, events and circumstances that occurred, in whole or in part, before such
amendment, alteration or repeal. The provisions of this Article VI shall
continue as to an Indemnitee whose Corporate Status has ceased for any reason
and shall inure to the benefit of his heirs, executors and administrators.
Neither the provisions of this Article VI nor those of any agreement to which
the Company is a party shall be deemed to preclude the indemnification of any
person who is not specified in this Article VI as having the right to receive
indemnification or is not a party to any such agreement, but whom the Company
has the power or obligation to indemnify under the provisions of the NRS.
6.4. Insurance and Subrogation. The Company shall not be liable under
-------------------------
the Articles of Incorporation or this Article VI to make any payment of amounts
otherwise indemnifiable hereunder if, but only to the extent that, the
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise. In the event of any payment
hereunder, the Company shall be subrogated to the extent of such payment to all
the rights of recovery of the Indemnitee, who shall execute all papers required
and take all action reasonably requested by the Company to secure such rights,
including execution of such documents as are necessary to enable the Company to
bring suit to enforce such rights.
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6.5. Severability. If any provision or provisions of this Article VI
------------
shall be held to be invalid, illegal or unenforceable for any reason whatsoever,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby; and, to the fullest extent possible,
the provisions of this Article VI shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or unenforceable.
6.6. Notices. Promptly after receipt by the Indemnitee of notice of
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the commencement of any action, suit or proceeding, the Indemnitee shall, if he
anticipates or contemplates making a claim for expenses or an advance pursuant
to the terms of the Articles of Incorporation and this Article VI, notify the
Company of the commencement of such action, suit or proceeding; provided,
however, that any delay in so notifying the Company shall not constitute a
waiver or release by the Indemnitee of rights hereunder and that any omission by
the Indemnitee to so notify the Company shall not relieve the Company from any
liability that it may have to the Indemnitee otherwise than under the Articles
of Incorporation or this Article VI. Any communication required or permitted to
the Company shall be addressed to the Secretary and any such communication to
the Indemnitee shall be addressed to the Indemnitee's address as shown on the
Company's records unless he specifies otherwise and shall be personally
delivered or delivered by overnight mail delivery. Any such notice shall be
effective upon receipt.
6.7. Contractual Rights. The right to be indemnified or to the
-------------------
advancement or reimbursement of expenses (a) is a contract right based upon good
and valuable consideration, pursuant to which the Indemnitee may sue as if these
provisions were set forth in a separate written contract between the Indemnitee
and the Company, (b) is and is intended to be retroactive and shall be available
as to events occurring prior to the adoption of these provisions, and (c) shall
continue after any rescission or restrictive modification of such provisions as
to events occurring prior thereto.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1. Bylaw Amendments. These Bylaws may be amended as provided in the
----------------
Articles of Incorporation.
7.2. Books and Records. The Company shall keep books and records of
-------------------
account and shall keep minutes of the proceedings of its stockholders, its Board
of Directors and each committee of its Board of Directors.
7.3. Notices; Waiver of Notice. Whenever any notice is required to be
-------------------------
given to any stockholder, director or committee member under the provisions of
the NRS, the Articles of Incorporation or these Bylaws, said notice shall be
deemed to be sufficient if given by deposit of the same in the United States
mail, with postage paid thereon, addressed to the person entitled thereto at his
address as it appears on the records of the Company, and such notice shall be
deemed to have been given on the day of such mailing.
Whenever any notice is required to be given to any stockholder, director or
committee member under the provisions of the NRS, the Articles of Incorporation
or these Bylaws, a waiver thereof in writing signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be equivalent to the giving of such notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened.
7.4. Resignations. Any director or officer may resign at any time.
------------
Such resignations shall be made in writing and shall take effect at the time
specified therein, or, if no time be specified, at the time of its receipt by
the President or the Secretary. The acceptance of a resignation shall not be
necessary to make it effective, unless expressly so provided in the resignation.
7.5. Seal. The seal of the Company shall be in such form as the Board
----
of Directors may adopt.
7.6. Fiscal Year. The fiscal year of the Company shall be determined
------------
by a resolution adopted by the Board of Directors.
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7.7. Facsimile Signatures. In addition to the provisions for the use
---------------------
of facsimile signatures elsewhere specifically authorized in these Bylaws,
facsimile signatures of any director or officer of the Company may be used
whenever and as authorized by the Board of Directors.
7.8. Reliance upon Books, Reports and Records. Each director and each
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member of any committee designated by the Board of Directors shall, in the
performance of his duties, be fully protected in relying in good faith upon the
books of account or reports made to the Company by any of its officers, or by an
independent certified public accountant, or by an appraiser selected with
reasonable care by the Board of Directors or by any such committee, or in
relying in good faith upon other records of the Company.
ARTICLE VIII
ADOPTION OF BYLAWS
8.1. Adoption. These Bylaws were adopted by the Board of Directors as
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of May 25, 2004.
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