Exhibit 3.2
BYLAWS
OF
SIONIX CORPORATION
a Nevada Corporation
TABLE OF CONTENTS
PAGE
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ARTICLE 1
CORPORATE OFFICES
SECTION 1.1 Registered Office. 1
SECTION 1.2 Other Offices. 1
ARTICLE 2
MEETINGS OF SHAREHOLDERS
SECTION 2.1 Place of Meetings. 1
SECTION 2.2 Annual Meeting. 1
SECTION 2.3 Special Meeting. 1
SECTION 2.4 Notice of Shareholders' Meetings. 1
SECTION 2.5 Advance Notice of Shareholder Nominees and Shareholder Business. 2
SECTION 2.6 Manner of Giving Notice; Affidavit of Notice. 3
SECTION 2.7 Quorum. 3
SECTION 2.8 Adjourned Meeting; Notice. 3
SECTION 2.9 Presiding Officer and Secretary; Conduct of Business. 4
SECTION 2.10 Voting. 4
SECTION 2.11 Waiver of Notice. 5
SECTION 2.12 Record Date for Shareholder Notice; Voting 5
SECTION 2.13 Proxies 6
SECTION 2.14 List of Shareholders Entitled to Vote. 6
ARTICLE 3
DIRECTORS
SECTION 3.1 Powers. 6
SECTION 3.2 Number of Directors. 6
SECTION 3.3 Election and Qualification of Directors. 7
SECTION 3.4 Resignation and Vacancies. 7
SECTION 3.5 Place of Meetings; Meetings by Telephone. 8
SECTION 3.6 Regular Meetings. 8
SECTION 3.7 Special Meetings. 8
SECTION 3.8 Quorum. 8
SECTION 3.9 Notice Procedure. 9
SECTION 3.10 Waiver of Notice. 9
SECTION 3.11 Board Action by Written Consent Without a Meeting. 9
SECTION 3.12 Fees and Compensation of Directors. 9
SECTION 3.13 Approval of Loans to Officers. 9
SECTION 3.14 Reduction of Directors. 10
ARTICLE 4
COMMITTEES
SECTION 4.1 Committees of Directors. 10
SECTION 4.2 Committee Minutes. 10
SECTION 4.3 Meetings and Action of Committees. 10
ARTICLE 5
OFFICERS
SECTION 5.1 Officers. 11
SECTION 5.2 Appointment of Officers. 11
SECTION 5.3 Chairman of the Board. 12
SECTION 5.4 Vice Chairman of the Board. 12
SECTION 5.5 Chief Executive Officer. 12
SECTION 5.6 President. 12
SECTION 5.7 Vice Presidents. 12
SECTION 5.8 Secretary. 12
SECTION 5.9 Chief Financial Officer. 13
SECTION 5.10 Assistant Secretary. 13
SECTION 5.11 Assistant Treasurer. 13
SECTION 5.12 Representation of Shares of Other Corporations. 14
ARTICLE 6
INDEMNITY
SECTION 6.1 Third Party Actions. 14
SECTION 6.2 Actions by or in the Right of the Corporation. 14
SECTION 6.3 Successful Defense. 15
SECTION 6.4 Determination of Conduct. 15
SECTION 6.5 Payment of Expenses in Advance. 15
SECTION 6.6 Indemnity Not Exclusive. 16
SECTION 6.7 Insurance Indemnification. 16
SECTION 6.8 The Corporation. 16
SECTION 6.9 Employee Benefit Plans. 16
SECTION 6.10 Continuation of Indemnification and Advancement of Expenses. 17
ARTICLE 7
RECORDS AND REPORTS
SECTION 7.1 Maintenance and Inspection of Records. 17
SECTION 7.2 Inspection by Directors. 18
SECTION 7.3 Annual Statement to Shareholders. 18
ARTICLE 8
GENERAL MATTERS
SECTION 8.1 Execution of Corporate Contracts and Instruments. 18
SECTION 8.2 Stock Certificates; Partly Paid Shares. 18
SECTION 8.3 Special Designation on Certificates. 19
SECTION 8.4 Lost Certificates. 19
SECTION 8.5 Construction; Definitions. 19
SECTION 8.6 Dividends. 20
SECTION 8.7 Fiscal Year. 20
SECTION 8.8 Seal. 20
SECTION 8.9 Transfer of Stock. 20
SECTION 8.10 Stock Transfer Agreements. 20
SECTION 8.11 Registered Shareholders. 20
ARTICLE 9
AMENDMENTS
21
BYLAWS
OF
SIONIX CORPORATION
ARTICLE 1. CORPORATE OFFICES
SECTION 1.1 REGISTERED OFFICE.
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The registered office of the corporation shall be in the City of Carson
City, State of Nevada. The name of the registered agent of the corporation at
such location is GKL Resident Agents/Filings, Inc.
SECTION 1.2 OTHER OFFICES.
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The board of directors may at any time establish other offices at any
place or places where the corporation is qualified to do business.
ARTICLE 2. MEETINGS OF SHAREHOLDERS
SECTION 2.1 PLACE OF MEETINGS.
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Meetings of shareholders shall be held at any place, either within or
without the State of Nevada, as may be designated by the board of directors or
in the manner provided in these bylaws.
SECTION 2.2 ANNUAL MEETING.
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The annual meeting of shareholders shall be held each year on a date
and at a time designated by the board of directors. In the absence of such
designation, the annual meeting of shareholders shall be held on the third
Tuesday of January of each year at 10:00 a.m. However, if such day falls on a
legal holiday, then the meeting shall be held at the same time and place on the
next succeeding business day. At the meeting, directors shall be elected and any
other proper business may be transacted.
SECTION 2.3 SPECIAL MEETING.
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A special meeting of the shareholders may be called at any time only by
the chairman of the board, by the chief executive officer, by the president or
by the board of directors pursuant to a resolution adopted by a majority of the
total number of directors that the corporation would have if there were no
vacancies. No business may be transacted at such special meeting otherwise than
specified in such notice.
SECTION 2.4 NOTICE OF SHAREHOLDERS' MEETINGS.
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All notices of meetings with shareholders shall be in writing and shall
be sent or otherwise given in accordance with Section 2.6 of these bylaws not
less than ten (10) nor more than sixty (60) days before the date of the meeting
to each shareholder entitled to vote at such meeting. The notice shall specify
the place, date, and hour of the meeting, and, in the case of a special meeting,
the purpose or purposes for which the meeting is called.
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SECTION 2.5 ADVANCE NOTICE OF SHAREHOLDER NOMINEES AND SHAREHOLDER
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BUSINESS.
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Subject to the rights of holders of any class or series of stock having
a preference over the Common Stock as to dividends or upon liquidation,
(i) nominations for the election of directors, and
(ii) business proposed to be brought before any
shareholder meeting
may be made by the board of directors or proxy committee appointed by the board
of directors or by any shareholder entitled to vote in the election of directors
generally if such nomination or business proposed is otherwise proper business
before such meeting. However, any such shareholder may nominate one or more
persons for election as directors at a meeting or propose business to be brought
before a meeting, or both, only if such shareholder has given timely notice in
proper written form of their intent to make such nomination or nominations or to
propose such business. To be timely, such shareholder's notice must be delivered
to or mailed and received at the principal executive offices of the corporation
not less than one hundred twenty (120) calendar days in advance of the first
anniversary date of mailing of the corporation's proxy statement released to
shareholders in connection with the previous year's annual meeting of
shareholders; provided, however, that in the event that no annual meeting was
held in the previous year or the date of the annual meeting has been changed by
more than thirty (30) days from the date contemplated at the time of the
previous year's proxy statement, notice by the shareholder to be timely must be
so received a reasonable time before the solicitation is made. To be in proper
form, a shareholder's notice to the secretary shall set forth:
(a) the name and address of the shareholder who intends to make
the nominations or propose the business and, as the case may be, of the
person or persons to be nominated or of the business to be proposed;
(b) a representation that the shareholder is a holder of record
of stock of the corporation entitled to vote at such meeting and, if
applicable, intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice;
(c) if applicable, a description of all arrangements or
understandings between the shareholder and each nominee and any other
person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the shareholder;
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(d) such other information regarding each nominee or each
matter of business to be proposed by such shareholder as would be
required to be included in a proxy statement filed pursuant to the
proxy rules of the Securities and Exchange Commission had the nominee
been nominated, or intended to be nominated, or the matter been
proposed, or intended to be proposed by the board of directors; and
(e) if applicable, the consent of each nominee to serve as
director of the corporation if so elected. The chairman of the meeting
may refuse to acknowledge the nomination of any person or the proposal
of any business not made in compliance with the foregoing procedure.
SECTION 2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.
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Written notice of any meeting of shareholders, if mailed, is given when
deposited in the United States mail, postage prepaid, directed to the
shareholder at his address as it appears on the records of the corporation. An
affidavit of the secretary or an assistant secretary or of the transfer agent of
the corporation that the notice has been given shall, in the absence of fraud,
be prima facie evidence of the facts stated therein.
SECTION 2.7 QUORUM.
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The holders of a majority of the stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum is not present or represented at any
meeting of the shareholders, then either (i) the chairman of the meeting or (ii)
the shareholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum is present or
represented. At such adjourned meeting at which a quorum is present or
represented, any business may be transacted that might have been transacted at
the meeting as originally noticed.
SECTION 2.8 ADJOURNED MEETING; NOTICE.
--------------------------
When a meeting is adjourned to another time or place, unless these
bylaws otherwise require, notice need not be given of the adjourned meeting if
the time and place thereof are announced at the meeting at which the adjournment
is taken. At the adjourned meeting the corporation may transact any business
that might have been transacted at the original meeting. If the adjournment is
for more than thirty (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 shareholder of record entitled to vote at the meeting.
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SECTION 2.9 PRESIDING OFFICER AND SECRETARY; CONDUCT OF BUSINESS.
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Meetings of the shareholders shall be presided over by the chairman, or
if the chairman is not present, by any vice chairman, or if the chairman or vice
chairman is not present or if the corporation shall not have a chairman or vice
chairman, by the chief executive officer, or if neither the chairman nor the
vice chairman or chief executive officer is present, by a chairman chosen by a
majority of the shareholders present at such meeting. The secretary or, in the
secretary's absence, an assistant secretary shall act as secretary of every
meeting, but if neither the secretary nor an assistant secretary is present, a
majority of the shareholders present at such meeting shall choose any person
present to act as secretary of the meeting.
Meetings of the shareholders generally shall follow accepted rules of
parliamentary procedure subject to the following:
(a) The chairman of the meeting shall have absolute authority
over the matters of procedure, and there shall be no appeal from the
ruling of the chairman. If, in his or her absolute discretion, the
chairman deems it advisable to dispense with the rules of parliamentary
procedure as to any meeting of shareholders or part thereof, he or she
shall so state and shall state the rules under which the meeting or
appropriate part thereof shall be conducted.
(b) If disorder should arise which prevents the continuation of
the legitimate business of the meeting, the chairman may quit the chair
and announce the adjournment of the meeting, and upon so doing, the
meeting will immediately be adjourned.
(c) The chairman may ask or require that anyone not a bona
fide shareholder or proxy leave the meeting.
(d) The resolution or motion shall be considered for vote only
if proposed by a shareholder or a duly authorized proxy and seconded by
a shareholder or duly authorized proxy other than the individual who
proposed the resolution or motion.
(e) Except as the chairman may permit, no matter shall be
presented to the meeting which has not been submitted for consideration
in accordance with the terms and provisions of Section 2.5.
SECTION 2.10 VOTING.
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The shareholders entitled to vote at any meeting of shareholders shall
be determined in accordance with the provisions of Section 2.13 of these bylaws,
subject to the provisions of the Nevada General Corporation Law (relating to
voting rights of fiduciaries, pledgors and joint owners of stock and to voting
trusts and other voting agreements).
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Except as may be otherwise provided in the articles of incorporation,
each shareholder shall be entitled to one vote for each share of capital stock
held by such shareholder. At any meeting of shareholders (at which a quorum is
present to organize the meeting), all matters, except as otherwise provided by
statute, by the articles of incorporation or by these bylaws, shall be decided
by the majority of the votes cast at such meeting by the holders of shares
present in person or represented by proxy and entitled to vote thereon, whether
or not a quorum is present when the vote is taken.
SECTION 2.11 WAIVER OF NOTICE.
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Whenever notice is required to be given under any provision of the
Nevada General Corporation Law or of the articles of incorporation or these
bylaws, a written waiver, signed by the person entitled to notice, whether
before or after the time stated therein, shall be deemed equivalent to 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. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
shareholders, directors, or members of a committee of directors need be
specified in any written waiver of notice unless so required by the articles of
incorporation or these bylaws.
SECTION 2.12 RECORD DATE FOR SHAREHOLDER NOTICE; VOTING.
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In order that the corporation may determine the shareholders entitled
to notice of or to vote at any meeting of shareholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the board of directors may fix, in advance, a record date, which shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action.
If the board of directors does not so fix a record date:
(i) The record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders shall be at
the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close
of business on the day next preceding the day on which the
meeting is held.
(ii) The record date for determining shareholders for any
other purpose shall be at the close of business on the day on
which the board of directors adopts the resolution relating
thereto.
A determination of shareholders of record entitled to notice of or to
vote at a meeting of shareholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
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SECTION 2.13 PROXIES.
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Each shareholder entitled to vote at a meeting of shareholders or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for such shareholder by a written
proxy, signed by such shareholder and filed with the secretary of the
corporation, but no such proxy shall be voted or acted upon after six (6) months
from its date, unless the proxy is coupled with an interest or the proxy
provides for a longer period. A proxy shall be deemed signed if such
shareholder's name is placed on the proxy by any reasonable means including, but
not limited to, by facsimile signature, manual signature, typewriting,
telegraphic transmission or otherwise, by such shareholder or such shareholder's
attorney-in-fact.
SECTION 2.14 LIST OF SHAREHOLDERS ENTITLED TO VOTE.
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The officer who has charge of the stock ledger of a corporation shall
prepare and make, at least ten (10) days before every meeting of shareholders, a
complete list of the shareholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each shareholder and the number
of shares registered in the name of each shareholder. Such list shall be open to
the examination of any shareholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any shareholder who is present. Such list shall
presumptively determine the identity of the shareholders entitled to vote at the
meeting and the number of shares held by each of them. ARTICLE 3. DIRECTORS
SECTION 3.1 POWERS.
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Subject to the provisions of the Nevada General Corporation Law and any
limitations in the articles of incorporation or these bylaws relating to action
required to be approved by the shareholders or by the outstanding shares, the
business and affairs of the corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the board of directors.
SECTION 3.2 NUMBER OF DIRECTORS.
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Except as otherwise provided in the articles of incorporation, the
board of directors shall consist of nine (9) members. The number of directors
may be changed by a resolution of the board of directors, or by a duly adopted
amendment to the article of incorporation. At each annual meeting of
shareholders, the shareholders shall elect directors to serve a one-year term. A
director shall hold office until the annual shareholder meeting for the year in
which his term expires and until his successor shall be elected and shall
qualify, subject, however, to prior death, resignation, retirement,
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disqualification or removal from office. If the number of directors is changed,
any additional director elected to fill a vacancy resulting from an increase in
the number of directors shall hold office for a term that shall coincide with
the remaining term of the directors, but in no case will a decrease in the
number of directors shorten the term of any incumbent director.
No reduction of the authorized number of directors shall have the
effect of removing any director before that director's term of office expires.
SECTION 3.3 ELECTION AND QUALIFICATION OF DIRECTORS.
----------------------------------------
Directors need not be shareholders unless so required by the articles
of incorporation or these bylaws, wherein other qualifications for directors may
be prescribed. Each director, including a director elected to fill a vacancy,
shall hold office until his successor is elected and qualified or until his
earlier resignation or removal. Elections of directors need not be by written
ballot.
SECTION 3.4 RESIGNATION AND VACANCIES.
--------------------------
Any director may resign at any time upon written notice to the
attention of the Secretary of the corporation. When one or more directors shall
resign from the board of directors, effective at a future date, a majority of
the directors then in office, including those who have so resigned, shall have
power to fill such vacancy or vacancies, the vote thereon to take effect when
such resignation or resignations shall become effective, and each director so
chosen shall hold office as provided in this section in the filling of other
vacancies.
Unless otherwise provided in the articles of incorporation or these
bylaws:
(i) Vacancies and newly created directorships resulting from
any increase in the authorized number of directors elected by
all of the shareholders having the right to vote as a single
class may be filled by a majority of the directors then in
office, although less than a quorum, or by a sole remaining
director.
(ii) Whenever the holders of any class or classes of stock or
series thereof are entitled to elect one or more directors by
the articles of incorporation, vacancies and newly created
directorships of such class or classes or series may be filled
by a majority of the directors elected by such class or
classes or series thereof then in office, or by a sole
remaining director so elected.
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If at any time, by reason of death or resignation or other cause, the
corporation should have no directors in office, then any officer or any
shareholder or an executor, administrator, trustee or guardian of a shareholder,
or other fiduciary entrusted with like responsibility for the person or estate
of a shareholder, may call a special meeting of shareholders in accordance with
the provisions of the articles of incorporation or these bylaws.
SECTION 3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE.
-----------------------------------------
The board of directors of the corporation may hold meetings, both
regular and special, either within or outside the State of Nevada.
Unless otherwise restricted by the articles of incorporation or these
bylaws, members of the board of directors, or any committee designated by the
board of directors, may participate in 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 such participation in a meeting pursuant to this section shall constitute
presence in person at the meeting.
SECTION 3.6 REGULAR MEETINGS.
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Regular meetings of the board of directors may be held without notice
at such time and at such place as shall from time to time be determined by the
board.
SECTION 3.7 SPECIAL MEETINGS.
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Special meetings of the board of directors may be called by the
chairman, the chief executive officer, the president, or the secretary or by any
two (2) or more directors then serving on at least one (1) day's notice to each
director given by one of the means specified in Section 3.9 hereof other than by
mail, or on at least three (3) days' notice if given by mail. Special meetings
shall be called by the chairman, chief executive officer, president or secretary
in like manner and on like notice on the written request of any two (2) or more
of the directors then serving.
SECTION 3.8 QUORUM.
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At all meetings of the board of directors, a majority of the authorized
number of directors shall constitute a quorum for the transaction of business
and the act of a majority of the directors present at any meeting at which there
is a quorum shall be the act of the board of directors, except as may be
otherwise specifically provided by statute, the article of incorporation, or
these bylaws. If a quorum is not present at any meeting of the board of
directors, then the directors present thereat may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
is present.
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A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for that
meeting.
SECTION 3.9 NOTICE PROCEDURE.
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Whenever, under provisions of any statutes, the article of
incorporation or these bylaws, notice is required to be given to any director,
such notice shall be deemed given effectively if given in person, by telephone
or any other comprehensible means, by mail addressed to such director at such
director's address as it appears in the records of the corporation, with postage
paid thereon, or by telegram, telex, telecopy, email or other electronic
communication or similar means addressed as aforesaid.
SECTION 3.10 WAIVER OF NOTICE.
-----------------
Whenever notice is required to be given under any provision of the
Nevada General Corporation Law, the articles of incorporation, or these bylaws,
a written waiver thereof, signed by the person entitled to notice, whether
before or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when such 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. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
directors, or members of a committee of directors, need be specified in any
written waiver of notice unless so required by the articles of incorporation or
these bylaws.
SECTION 3.11 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
-------------------------------------------------
Unless otherwise restricted by the articles of incorporation or these
bylaws, any action required or permitted to be taken at any meeting of the board
of directors, or of any committee thereof may be taken without a meeting if all
members of the board or committee, as the case may be, consent thereto in
writing and the writing or writings are filed with the minutes of proceedings of
the board or committee.
SECTION 3.12 FEES AND COMPENSATION OF DIRECTORS.
-----------------------------------
Unless otherwise restricted by the articles of incorporation or these
bylaws, the board of directors shall have the authority to fix the compensation
of directors.
SECTION 3.13 APPROVAL OF LOANS TO OFFICERS.
------------------------------
The corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the corporation or of its
subsidiary, including any officer or employee who is a director of the
corporation or its subsidiary, whenever, in the judgment of the directors, such
loan, guaranty or assistance may reasonably be expected to benefit the
corporation. The loan, guaranty or other assistance may be with or without
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interest and may be unsecured, or secured in such manner as the board of
directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing contained in this section shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the corporation at
common law or under any statute.
SECTION 3.14 REDUCTION OF DIRECTORS.
-----------------------
No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of such director's term
of office.
ARTICLE 4. COMMITTEES
SECTION 4.1 COMMITTEES OF DIRECTORS.
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The board of directors may, by resolution passed by a majority of the
whole board, designate one or more committees, with each committee to consist of
one or more of the directors of the corporation. The board may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such
member or members constitute a quorum, may unanimously appoint another member of
the board of directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the board of directors, or in the bylaws of the corporation, shall
have and may exercise all the powers and authority of the board of directors in
the management of the business and affairs of the corporation, and may authorize
the seal of the corporation to be affixed to all papers that may require it; but
no such committee shall have the power or authority (i) approving or adopting or
recommending to the shareholders, any action or matter expressly required by the
Nevada General Corporation Law to be submitted to shareholders for approval or
(ii) adopting, amending, or repealing any bylaws of the corporation; and, unless
the board resolution establishing the committee, the bylaws or the articles of
incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger pursuant to the Nevada General Corporation
Law.
SECTION 4.2 COMMITTEE MINUTES.
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Each committee shall keep regular minutes of its meetings and report
the same to the board of directors when required.
SECTION 4.3 MEETINGS AND ACTION OF COMMITTEES.
----------------------------------
Meetings and actions of committees shall be governed by, and held and
taken in accordance with, the provisions of Article III of these bylaws, Section
3.5 (place of meetings and meetings by telephone), Section 3.6 (regular
meetings), Section 3.7 (special meetings), Section 3.8 (quorum), Section 3.9
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(notice procedure), Section 3.10 (waiver of notice) and Section 3.10 (action
without a meeting), with such changes in the context of those bylaws as are
necessary to substitute the committee and its members for the board of directors
and its members; provided, however, that the time of regular meetings of
committees may be determined either by resolution of the board of directors or
by resolution of the committee, that special meetings of committees may also be
called by resolution of the board of directors and that notice of special
meetings of committees shall also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The board of directors
may adopt rules for the government of any committee not inconsistent with the
provisions of these bylaws.
ARTICLE 5. OFFICERS
SECTION 5.1 OFFICERS.
---------
The officers of the corporation shall consist of a president, a
secretary, and a treasurer who shall be elected by the Board of Directors, and
may consist of additional officers including, one or more vice presidents (who
may be designated as vice presidents, senior vice presidents or executive vice
presidents), as appointed by the board of directors or the chief executive
officer. The corporation may have such additional or assistant officers
(sometimes referred to as "additional officers") as the board of directors or
chief executive officer may deem necessary for its business and may appoint from
time to time.
The board of directors shall also have the authority, but shall not be
required, to designate officers as the chief executive officer, the chief
operating officer, the chief financial officer or similar such titles. Any two
or more offices may be held by the same person.
If a director/officer has not been designated as chairman, or if the
designated chairman is not present, the board of directors shall elect a
chairman from amongst its members to serve as chairman of the board of
directors. The chairman shall preside at all meetings of the board of directors,
and shall have such other powers as the board may determine.
SECTION 5.2 APPOINTMENT OF OFFICERS.
------------------------
The officers of the corporation shall be appointed annually by the
board of directors at the first meeting of the board of directors held after
each annual meeting of the shareholders. If officers are not appointed at such
meeting, such appointment shall occur as soon as possible thereafter, or may be
left vacant. Each officer shall hold office until a successor shall have been
appointed and qualified or until said officer's earlier death, resignation, or
removal.
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SECTION 5.3 CHAIRMAN OF THE BOARD.
----------------------
The chairman of the board, if such an officer be elected, shall, if
present, preside at meetings of the board of directors and exercise and perform
such other powers and duties as may from time to time be assigned to the
chairman of the board by the board of directors or as may be prescribed by these
bylaws.
SECTION 5.4 VICE CHAIRMAN OF THE BOARD.
---------------------------
The vice chairman of the board, if any, shall have such powers and
duties as may be delegated to him by the board of directors or the chairman. To
the extent not otherwise provided herein, the vice chairman of the board shall
perform the duties and exercise the powers of the chairman of the board in the
event of the chairman's absence or disability. The corporation may have one or
more vice chairman.
SECTION 5.5 CHIEF EXECUTIVE OFFICER.
------------------------
The board of directors shall select a chief executive officer of the
corporation who shall be subject to the control of the board of directors and
have general supervision, direction and control of the business and the officers
of the corporation. The chief executive officer shall preside at all meetings of
the shareholders and, in the absence or nonexistence of a chairman of the board,
at all meetings of the board of directors.
SECTION 5.6 PRESIDENT.
----------
The president 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, the
chief executive officer or these bylaws.
SECTION 5.7 VICE PRESIDENTS.
----------------
Each vice president shall have such powers and duties as may be
delegated to him by the board of directors, the chief executive officer of the
president.
SECTION 5.8 SECRETARY.
----------
The secretary shall keep or cause to be kept, at the principal
executive office of the corporation or such other place as the board of
directors may direct, a book of minutes of all meetings and actions of
directors, committees of directors, and shareholders. The minutes shall show the
time and place of each meeting, whether regular or special (and, if special, how
authorized and the notice given), the names of those present at directors'
meetings or committee meetings, the number of shares present or represented at
shareholders' meetings, and the proceedings thereof.
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The secretary shall keep, or cause to be kept, at the principal
executive office of the corporation or at the office of the corporation's
transfer agent or registrar, as determined by resolution of the board of
directors, a share register, or a duplicate share register, showing the names of
all shareholders and their addresses, the number and classes of shares held by
each, the number and date of certificates evidencing such shares, and the number
and date of cancellation of every certificate surrendered for cancellation. The
secretary shall give, or cause to be given, notice of all meetings of the
shareholders and of the board of directors required to be given by law or by
these bylaws. The secretary shall keep the seal of the corporation, if one be
adopted, in safe custody and shall have such other powers and perform such other
duties as may be prescribed by the board of directors or by these bylaws.
SECTION 5.9 CHIEF FINANCIAL OFFICER.
------------------------
The chief financial officer shall keep and maintain, or cause to be
kept and maintained, adequate and correct books and records of accounts of the
properties and business transactions of the corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital
retained earnings, and shares. The books of account shall at all reasonable
times be open to inspection by any director.
The chief financial officer shall deposit all moneys and other
valuables in the name and to the credit of the corporation with such
depositories as may be designated by the board of directors. The chief financial
officer shall disburse the funds of the corporation as may be ordered by the
board of directors, shall render to the chief executive officer and directors,
whenever they request it, an account of all his transactions as chief financial
officer and of the financial condition of the corporation, and shall have other
powers and perform such other duties as may be prescribed by the board of
directors, the chief executive officer or these bylaws.
The chief financial officer shall also be the treasurer of the
corporation.
SECTION 5.10 ASSISTANT SECRETARY.
---------------------------------
The assistant secretary, or, if there is more than one, the assistant
secretaries in the order determined by the shareholders or board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the secretary or in the event of his or her inability
or refusal to act, perform the duties and exercise the powers of the secretary
and shall perform such other duties and have such other powers as may be
prescribed by the board of directors, the chief executive officer or these
bylaws.
SECTION 5.11 ASSISTANT TREASURER.
--------------------
The assistant treasurer, or, if there is more than one, the assistant
treasurers, in the order determined by the board of directors or the chief
executive officer (or if there be no such determination, then in the order of
their election), shall, in the absence of the chief financial officer or in the
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event of his or her inability or refusal to act, perform the duties and exercise
the powers of the chief financial officer and shall perform such other duties
and have such other powers as may be prescribed by the board of directors, the
chief executive officer or these bylaws.
SECTION 5.12 REPRESENTATION OF SHARES OF OTHER CORPORATIONS.
-----------------------------------------------
The chairman of the board, the chief executive officer, the president,
any vice president, the chief financial officer, the secretary or assistant
secretary of this corporation, or any other person authorized by the board of
directors or the president or a vice president, is authorized to vote,
represent, and exercise on behalf of this corporation all rights incident to any
and all shares of any other corporation or corporations standing in the name of
this corporation. The authority granted herein may be exercised either by such
person directly or by any other person authorized to do so by proxy or power of
attorney duly executed by such person having the authority.
ARTICLE 6. INDEMNITY
SECTION 6.1 THIRD PARTY ACTIONS.
--------------------
The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation 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 (if such settlement is approved
in advance by the corporation, which approval shall not be unreasonably
withheld) actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's 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,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which the person reasonably believed to be in or not
opposed to the best interest of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that the person's
conduct was unlawful.
SECTION 6.2 ACTIONS BY OR IN THE RIGHT OF THE CORPORATION.
----------------------------------------------
The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person is or was a director, officer, employee or
agent of corporation, or is or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including attorneys'
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fees) and amounts paid in settlement (if such settlement is approved in advance
by the corporation, which approval shall not be unreasonably withheld) actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith and in
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper. Notwithstanding any other provision
of this Article VI, no person shall be indemnified hereunder for any expenses or
amounts paid in settlement with respect to any action to recover short-swing
profits under Section 16(b) of the Securities Exchange Act of 1934, as amended.
SECTION 6.3 SUCCESSFUL DEFENSE.
-------------------
To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 6.1 and 6.2, or in defense of
any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
SECTION 6.4 DETERMINATION OF CONDUCT.
-------------------------
Any indemnification under Sections 6.1 and 6.2 (unless ordered by a
court) shall be made by the corporation only as authorized in the specific case
upon a determination that the indemnification of the director, officer, employee
or agent is proper in the circumstances because such person has met the
applicable standard of conduct set forth in Sections 6.1 and 6.2. Such
determination shall be made (1) by the board of directors or the executive
committee by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding or (2) or if such quorum is not
obtainable or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
shareholders. Notwithstanding the foregoing, a director, officer, employee or
agent of the corporation shall be entitled to contest any determination that the
director, officer, employee or agent has not met the applicable standard of
conduct set forth in Sections 6.1 and 6.2 by petitioning a court of competent
jurisdiction.
SECTION 6.5 PAYMENT OF EXPENSES IN ADVANCE.
-------------------------------
Expenses incurred in defending a civil or criminal action, suit or
proceeding, by an individual who may be entitled to indemnification pursuant to
Section 6.1 or 6.2, shall be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
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or on behalf of the director, officer, employee or agent to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in this Article VI.
SECTION 6.6 INDEMNITY NOT EXCLUSIVE.
------------------------
The indemnification and advancement of expenses provided by or granted
pursuant to the other sections of this Article VI shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any by-law, agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
SECTION 6.7 INSURANCE INDEMNIFICATION.
--------------------------
The corporation shall have the power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against such
person and incurred by such person in any such capacity or arising out of such
person's status as such, whether or not the corporation would have the power to
indemnify such person against such liability under the provisions of this
Article VI.
SECTION 6.8 THE CORPORATION.
----------------
For purposes of this Article VI, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under and subject to the provisions of this Article VI (including,
without limitation the provisions of Section 6.4) with respect to the resulting
or surviving corporation as such person would have with respect to such
constituent corporation if its separate existence had continued.
SECTION 6.9 EMPLOYEE BENEFIT PLANS.
-----------------------
For purposes of this Article VI, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
16
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this Article
VI.
SECTION 6.10 CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF
--------------------------------------------------
EXPENSES.
- ---------
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article VI shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE 7. RECORDS AND REPORTS
SECTION 7.1 MAINTENANCE AND INSPECTION OF RECORDS.
--------------------------------------
The corporation shall, either at its principal executive officer or at
such place or places as designated by the board of directors, keep a record of
its shareholders listing their names and addresses and the number and class of
shares held by each shareholder, a copy of these bylaws as amended to date,
accounting books, and other records.
Any shareholder of record, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have the
right during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its shareholders, and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a shareholder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent so to act on
behalf of the shareholder. The demand under oath shall be directed to the
corporation at its registered office in Nevada or at its principal place of
business.
The officer who has charge of the stock ledger of the corporation shall
prepare and make, at least ten (10) days before every meeting of shareholders, a
complete list of the shareholders entitled to vote at the meeting, arranged in
alphabetical order, showing the address of each shareholder and the number of
shares registered in the name of each shareholder. Such list shall be open to
the examination of any shareholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any shareholder who is present.
17
SECTION 7.2 INSPECTION BY DIRECTORS.
------------------------
Any director shall have the right to examine the corporation's stock
ledger, a list of its shareholders, and its other books and records for a
purpose reasonably related to his position as a director. The Superior Court of
the county of the corporation's registered office is hereby vested with the
exclusive jurisdiction to determine whether a director is entitled to the
inspection sought. The Court may summarily order the corporation to permit the
director to inspect any and all books and records, the stock ledger, and the
stock list and to make copies or extracts therefrom. The Court may, in its
discretion, prescribe any limitations or conditions with reference to the
inspection, or award such other and further relief as the Court may deem just
and proper.
SECTION 7.3 ANNUAL STATEMENT TO SHAREHOLDERS.
---------------------------------
The board of directors shall present at each annual meeting, and at any
special meeting of the shareholders when called for by vote of the shareholders,
a full and clear statement of the business and condition of the corporation.
ARTICLE 8 . GENERAL MATTERS
SECTION 8.1 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS.
-------------------------------------------------
The board of directors, except as otherwise provided in these bylaws,
may authorize any officer or officers, or agent or agents, to enter into any
contract or execute any instrument in the name of and on behalf of the
corporation; such authority may be general or confined to specific instances.
Unless so authorized or ratified by the board of directors or within the agency
power of an officer, no officer, agent or employee 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 for any purpose or for any amount.
SECTION 8.2 STOCK CERTIFICATES; PARTLY PAID SHARES.
---------------------------------------
The shares of the corporation shall be represented by certificates,
provided that the board of directors of the corporation may provide by
resolution or resolutions that some or all of any or all classes or series of
its stock shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until such certificate is surrendered to the
corporation. Notwithstanding the adoption of such a resolution by the board of
directors, every holder of stock represented by certificates and upon request
every holder of uncertificated shares shall be entitled to have a certificate
signed by, or in the name of the corporation by the chairman or vice-chairman of
the board of directors, or the president or vice-president, and by the chief
financial officer or an assistant treasurer, or the secretary or an assistant
secretary of such corporation representing the number of shares registered in
certificate form. Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate has ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if such person were
such officer, transfer agent or registrar at the date of issue.
18
The corporation may issue the whole or any part of its shares as partly
paid and subject to call for the remainder of the consideration to be paid
therefor. Upon the face or back of each stock certificate issued to represent
any such partly paid shares, upon the books and records of the corporation in
the case of uncertificated partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
Upon the declaration of any dividend on fully paid shares, the corporation shall
declare a dividend upon partly paid shares of the same class, but only upon the
basis of the percentage of the consideration actually paid thereon.
SECTION 8.3 SPECIAL DESIGNATION ON CERTIFICATES.
------------------------------------
If the corporation is authorized to issue more than one class of stock
or more than one series of any class, then the powers, the designations, the
preferences, and the relative, participating, optional or other special rights
of each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate that the corporation shall
issue to represent such class or series of stock; provided, however, that, in
lieu of the foregoing requirements there may be set forth on the face or back of
the certificate that the corporation shall issue to represent such class or
series of stock a statement that the corporation will furnish without charge to
each shareholder who so requests the powers, the designations, the preferences,
and the relative, participating, optional or other special rights of each class
of stock or series thereof and the qualifications, limitations or restrictions
of such preferences and/or rights.
SECTION 8.4 LOST CERTIFICATES.
------------------
Except as provided in this Section 8.4, no new certificates for shares
shall be issued to replace a previously issued certificate unless the latter is
surrendered to the corporation and canceled at the same time. The corporation
may issue a new certificate of stock or uncertificated shares in the place of
any certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the corporation may require the owner of the lost, stolen or
destroyed certificate, or his legal representative, to give the corporation a
bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate or uncertificated shares.
19
SECTION 8.5 CONSTRUCTION; DEFINITIONS.
--------------------------
Unless the context requires otherwise, the general provisions, rules of
construction, and definitions in the Nevada General Corporation Law shall govern
the construction of these bylaws. Without limiting the generality of this
provision, the singular number includes the plural, the plural number includes
the singular, and the term "person" includes both a corporation and a natural
person.
SECTION 8.6 DIVIDENDS.
----------
The directors of the corporation, subject to any restrictions contained
in (i) the Nevada General Corporation Law or (ii) the articles of incorporation,
may declare and pay dividends upon the shares of its capital stock. Dividends
may be paid in cash, in property, or in shares of the corporation's capital
stock.
The directors of the corporation may set apart out of any of the funds
of the corporation available for dividends a reserve or reserves for any proper
purpose and may abolish any such reserve. Such purposes shall include but not be
limited to equalizing dividends, repairing or maintaining any property of the
corporation, and meeting contingencies.
SECTION 8.7 FISCAL YEAR.
------------
The fiscal year of the corporation shall be fixed by resolution of the
board of directors and may be changed by the board of directors. SECTION
8.8 SEAL.
-----
The corporation may adopt a corporate seal, which shall be adopted and
which may be altered by the board of directors, and may use the same by causing
it or a facsimile thereof to be impressed or affixed or in any other manner
reproduced.
SECTION 8.9 TRANSFER OF STOCK.
------------------
Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction in its books.
SECTION 8.10 STOCK TRANSFER AGREEMENTS.
--------------------------
The corporation shall have power to enter into and perform any
agreement with any number of shareholders of any one or more classes of stock of
the corporation to restrict the transfer of shares of stock of the corporation
of any one or more classes owned by such shareholders in any manner not
prohibited by the Nevada General Corporation Law.
SECTION 8.11 REGISTERED SHAREHOLDERS.
------------------------
The corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends and
to vote as such owner, shall be entitled to hold liable for calls and
assessments the person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of another person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Nevada.
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ARTICLE 9. AMENDMENTS
The bylaws of the corporation may be adopted, amended or repealed by
the shareholders entitled to vote; provided, however, that the corporation may,
in its articles of incorporation, confer the power to adopt, amend or repeal
bylaws upon the directors. The fact that such power has been so conferred upon
the directors shall not divest the shareholders of the power, nor limit their
power to adopt, amend or repeal bylaws.
21