ARTICLES OF MERGER
OF
NEXTPATH TECHNOLOGIES, INC., a Nevada corporation
and
EPILOGUE CORPORATION, a Delaware Corporation
The undersigned corporations, NEXTPATH TECHNOLOGIES, INC., a Nevada
corporation ("NextPath") and EPILOGUE CORPORATION, a Delaware corporation
("Epilogue"), do hereby certify:
1. NextPath is a corporation duly organized and validly existing under
the laws of the State of Nevada.
2. Epilogue is a corporation duly organized and validly existing under
the laws of the State of Delaware.
3. NextPath and Epilogue are parties to a Merger Agreement pursuant to
which Epilogue will be merged with and into NextPath. Nextpath will be the
surviving corporation in the merger and Epilogue will cease to exist. Pursuant
to the Merger Agreement the stockholders of Epilogue will receive stock in
Nextpath.
4. The Articles of Incorporation and Bylaws of NextPath as existing
prior to the effective date of the merger shall continue in full force as the
Articles of Incorporation and Bylaws of the surviving corporation.
5. The complete executed Agreement and Plan of Merger dated as of
November 11, 1999, which sets forth the plan of merger providing for the merger
of Epilogue with and into NextPath is on file at the corporate offices of
Nextpath.
6. A copy of the Agreement and Plan of Merger will be furnished by
NextPath on request and without cost to any stockholder of any corporation which
is a party to the merger.
7. The plan of merger as set forth in the Agreement and Plan of Merger
has been approved by the Board of Directors of NextPath at a meeting of the
Board of Directors held November 11, 1999.
8. Stockholders approval of the Agreement and Plan of Merger by the
stockholders of NextPath is not required pursuant to NRS 92A.130(1).
9. The plan of merger as set forth in the Agreement and Plan of Merger
has been approved by Unanimous Written Consent of the Board of Directors of
Epilogue dated November 11, 1999.
10. The plan of merger as set forth in the Agreement and plan of Merger
has been approved by Unanimous Written Consent of the Shareholders of Epilogue
dated November 11, 1999.
11. The manner in which the exchange of issued share of Epilogue shall
be affected is set forth in the Merger Agreement.
IN WITNESS WHEREOF, the undersigned have executed these Article of
Merger on the 11th day of November, 1999.
NEXTPATH TECHNOLOGIES, INC. EPILOGUE CORPORATION
a Nevada Corporation a Delaware Corporation
By:/s/James R. Ladd By
---------------------------- ---------------------------
STATE OF
SS.
COUNTY OF
On before me, a Notary Public, personally appeared JAMES LADD
who is the president of NEXTPATH TECHNOLOGIES, INC>, and who is personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacities and that, by his signatures on
the instrument, the person or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
-----------------------------------
Notary Public
STATE OF City of Wash.
SS.
COUNTY OF District of Columbia
On November 12, 1999 before me, a Notary Public, personally appeared JAMES
who is the president of EPILOGUE CORPORATION, and who is personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacities and that, by his signatures on
the instrument, the person or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
-----------------------------------
Notary Public
11. The manner in which the exchange of issued share of Epilogue shall
be affected is set forth in the Merger Agreement.
IN WITNESS WHEREOF, the undersigned have executed these Article of
Merger on the 11th day of November, 1999.
NEXTPATH TECHNOLOGIES, INC. EPILOGUE CORPORATION
a Nevada Corporation a Delaware Corporation
By:/s/James R. Ladd By
---------------------------- ---------------------------
STATE OF
SS.
COUNTY OF Orange
On November 12, 1999 before me, a Notary Public, personally appeared JAMES
LADD who is the president of NEXTPATH TECHNOLOGIES, INC., and who is personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he executed the same in his authorized capacities and that, by his
signatures on the instrument, the person or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
-----------------------------------
Notary Public
STATE OF
SS.
COUNTY OF
On November 12, 1999 before me, a Notary Public, personally appeared JAMES
who is the president of EPILOGUE CORPORATION, and who is personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacities and that, by his signatures on
the instrument, the person or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
-----------------------------------
Notary Public
NEXTPATH TECHNOLOGIES
Mr. Frederic F. Wolfer, Jr.
8602 S. Braden Avenue
Tulsa, Oklahoma 74137
Dear Sir,
Per your request, below you will find a signature, written by my hand.
I trust this will help you. Please don't hesitate to call should you
require any additional information.
/s/Frederic F. Wolfer, Jr.
- --------------------------
Frederic F. Wolfer, Jr.
For NextPath Technologies, Inc.
Vice President, Secretary
Certificate of Merger
Of
Epilogue Corporation
(A Delaware corporation)
Into
Nextpath Technologies, Inc.
(A Nevada corporation)
Pursuant to Section 252 of the General
Corporation Law of the State of Delaware
NEXTPATH TECHNOLOGIES, INC., a Nevada corporation, and EPILOGUE
CORPORATION, a Delaware corporation, hereby certify as follows:
FIRST: The names and jurisdictions of the constituent corporations
are Epilogue Corporation, a Delaware corporation, and Nextpath Technologies,
Inc., a Nevada corporation.
SECOND: An Agreement and Plan of Merger (the "Merger Agreement") has
been approved, adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with Section 252 of the General
Corporation Law of the State of Delaware and the Nevada Revised Statutes.
THIRD: The Merger Agreement has been approved by action by unanimous
consent of the Board of Directors of Epilogue Corporation on November 11, 1999,
and by written consent without a meeting of a majority of the shareholders on
November 11, 1999.
FOURTH: The Merger Agreement has been approved by action by
unanimous consent of the Board of Directors of Nextpath Technologies, Inc.
on November 11, 1999 and pursuant to the Nevada Revised Statutes shareholder
approval is not required.
FIFTH: The surviving corporation is Nextpath Technologies, Inc. (the
"Surviving Corporation") and the articles of incorporation of the Surviving
Corporation are the articles of incorporation of Nextpath Technologies, Inc.
SIXTH: An executed copy of the Merger Agreement is on file at the
principal place of business of the Surviving Corporation at 114 South Churton
Street, Hillsborough, North Carolina 27278 and a copy of the Merger Agreement
will be furnished by the Surviving Corporation, on request and without cost, to
any stockholder of either constituent corporation.
SEVENTH: The authorized capital stock of Nextpath Technologies, Inc., a
Nevada corporation, is 100,000,000 shares of common stock, $.001 par value per
share of which 29,972,031 shares have been issued and are outstanding.
EIGHTH: The Surviving Corporation may be served with process in the State of
Delaware in any proceeding for the enforcement of any obligation of any
corporation organized under the laws of the State of Delaware, which is a party
to the merger and in any proceeding for the enforcement of the rights of a
dissenting shareholder of any such corporation organized under the laws of the
State of Delaware against the surviving corporation;
The Delaware Secretary of State shall be and hereby is irrevocably
appointed as the agent of the Surviving Corporation to accept service of process
in any such proceeding for which the service of process shall be mailed to the
Surviving Corporation at 114 South Churton Street, Hillsborough, North Carolina
27278.
The Surviving Corporation will promptly pay to the dissenting
shareholders of any corporation organized under the laws of the State of
Delaware which is a party to the merger the amount, if any, to which they shall
be entitled under the provisions of the Delaware General Corporation Law with
respect to the rights of dissenting shareholders.
NINTH: This Certificate of Merger shall be effective immediately upon
its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, Epilogue Corporation and Nextpath Technologies, Inc.
have caused this Certificate of Merger to be executed in their corporate names
by the Presidents and attested to on the 12th day of November, 1999.
EPILOGUE CORPORATION NEXTPATH TECHNOLOGIES, INC.
By:/s/James M. Cassidy By:/s/ James R. Ladd
------------------------------ ---------------------------------
Name: James M. Cassidy Name: James R. Ladd
Title: President Title: President
ARTICLES OF MERGER FOR
FSC HOLDINGS, INC.,
A NEVADA CORPORATION
Pursuant to the provisions of Section 78.458 of the Nevada Revised
Statutes, FSC Holdings, Inc., a Nevada corporation (the "Corporation"), hereby
adopts and files the following Articles of Merger as the surviving corporation
to the merger of Compact Power International, Inc., a Delaware corporation
("Compact"), with and into the Corporation:
FIRST: The name and place of incorporation of each corporation which is
a party to this merger is as follows:
Name Place of Incorporation
---- ----------------------
FSC Holdings, Inc. Nevada
Compact Power International Delaware
SECOND: The Agreement and Plan of Merger (the "Plan") governing the
merger between the Corporation and Compact, has been adopted by the Board of
Directors of the Corporation and Compact.
THIRD: The approval of the shareholders of the Corporation and Compact
was required to effectuate the merger. The number of shares of stock outstanding
in each of the corporations (and the number of votes entitled to be cast) as of
the date of the adoption of the Plan was as follows:
Entity Type of Shares Number of Shares Outstanding
- ------ -------------- ----------------------------
FSC Holdings, Inc. Common 85,043
Compact Power International, Inc. Common 1,500
The number of shares of stock of each corporation which voted for and
against the Plan was as follows:
Entity Type of Share For Against
- ------ -------------- --- -------
FSC Holdings, Inc. Common 47,500 0
Compact Power International, Inc. Common 1,500 0
FOURTH: The number of votes cast for the Plan by each voting group
entitled to vote was sufficient for approval of the merger by each such voting
group.
FIFTH: Following the merger Article I to the Articles of Incorporation
of the surviving corporation shall be amended as follows:
A. Delete Article I in its entirety and substitute in its place
the following:
Article One. The name of the Corporation is Hyperion Technologies,
Inc.
SIXTH: The complete executed Plan is on file at the registered office or
other place of business of the Corporation.
SEVENTH: A copy of the Plan will be furnished by the Corporation, on
request and without cost, to any shareholder of either corporation which is a
party to the merger.
EIGHTH: The merger will be effective upon the filing of the Articles of
Merger. DATED this 19th day of January, 1998.
FSC HOLDINGS, INC., a Nevada corporation
By/s/Robert Taylor
---------------------------------------
Robert Taylor, President
STATE OF UTAH
SS.
COUNTY OF SALT LAKE
On the 19th day of January, 1998, personally appeared before me
Robert Taylor, personally known to me or proved to me on the basis of
satisfactory evidence, and who, being by me duly sworn, did say that he is the
President of FSC Holdings, Inc., and that said document was signed by him in
behalf of said corporation by authority of its bylaws, and said Robert Taylor
acknowledged to me that said corporation executed the same. :.
/s/M. Jeanne Ball
-----------------------------------
NOTARY PUBLIC
By/s/Anita Patterson
---------------------------------
Anita Patterson, Secretary
STATE OF UTAH
SS.
COUNTY OF SALT LAKE
On the 19th day of January, 1998, personally appeared before me
Anita Patterson, personally known to me or proved to me on the basis of
satisfactory evidence, and who, being by me duly sworn, did say that she is the
Secretary of FSC Holdings, Inc., and that said document was signed by her in
behalf of said corporation by authority of its bylaws, and said Anita Patterson
acknowledged to me that said corporation executed the same.
/s/M. Jeanne Ball
-----------------------------------
NOTARY PUBLIC
CERTIFICATE OF CORRECTION
TO THE ARTICLES OF MERGER FOR FSC HOLDINGS, INC.,
A NEVADA CORPORATION
FSC Holdings, Inc., a Nevada corporation (the "Corporation"),
hereby files the following Certificate of Correction to the Articles of Merger
between the Corporation and Petrogenetics, Inc., a Colorado corporation. The
Articles of Merger were filed on May 12, 1997.
There is a typographical error in the Third paragraph under
"Number of Shares Outstanding". This paragraph states that Petrogenefics, Inc.
has 22,530,000 shares outstanding. The Third paragraph should state that
Petrogenetics, Inc. has 42.530.000 shares outstanding.
/s/Anita Patterson
-----------------------------------
Anita Patterson, President
ARTICLES OF MERGER FOR
FSC HOLDINGS, INC.
A NEVADA CORPORATION
Pursuant to the provisions of Section 7-111-105 of the Colorado Revised
Statutes, FS(Holdings, Inc., a Nevada corporation (the "Corporation") with its
principal office located at 215 South State Street, Suite 1100, Salt Lake City,
Utah 84111, hereby adopts and files the following Articles of Merger as the
surviving corporation to the merger of Petrogenetics, Inc., a Colorado
corporation ("Petrogenetics"), with and into the Corporation:
FIRST: A complete and executed copy of the Agreement and Plan of
Merger (the "Plan") governing the merger between the Corporation and
Petrogenetics, as adopted by the Boards of Directors of the Corporation and
Petrogenetics and as approved by the shareholders of the Corporation and
Petrogenetics on May 8, 1997, is attached hereto as Exhibit "A". The Plan is
incorporated herein by this reference.
SECOND: The approval of the shareholders of the Corporation and
Petrogenetics was required to effectuate the merger.
THIRD: The number of votes cast for the plan by each voting
entitled to vote separately on the merger was sufficient for approval by that
voting group.
FOURTH: The merger is not being effected pursuant to section
7-111-104 of the Colorado Revised Statutes.
DATED this 8th day of May, 1997.
FSC HOLDINGS, INC., a Nevada corporation
By/s/Anita Patterson
---------------------------------------
Anita Patterson, President
By/s/Robert Taylor
---------------------------------------
Robert Taylor, Secretary
PETROGENETICS, INC.
By/s/Robert Taylor
---------------------------------------
Robert Taylor, President
By/s/Anita Patterson
---------------------------------------
Anita Patterson, Secretary
ARTICLES OF MERGER FOR
FSC HOLDINGS, INC.
A NEVADA CORPORATION
Pursuant to the provisions of Section 78.458 of the Nevada
Revised Statutes, FSC Holdings, Inc., a Nevada corporation (the "Corporation"),
hereby adopts and files the following Articles of Merger as the surviving
corporation to the merger of Petrogenetics, Inc., a Colorado corporation
("Petrogenetics"), with and into the Corporation:
FIRST: The name and place of incorporation of each corporation
which is a party to this merger is as follows:
Name Place of Incorporation
---- -----------------------
Petrogenetics, Inc. Colorado
FSC Holdings, Inc. Nevada
SECOND: The Agreement and Plan of Merger (the "Plan") governing
the merger between the Corporation and Petrogenetics, has been adopted by the
Board of Directors of the Corporation and Petrogenetics.
THIRD: The approval of the shareholders of the Corporation and
Petrogenetics was required to effectuate the merger. The number of shares of
stock outstanding in each of the corporations (and the number of votes entitled
to be cast) as of the date of the adoption of the Plan was as follows:
Entity Type of Shares Number of Shares Outstanding
- ------ -------------- ----------------------------
Petrogenetics, Inc. Common
FSC Holdings, Inc. Common 100
The number of shares of stock of each corporation which voted for
and against the Plan was as follows:
Entity Type of Shares For Against
- ------ -------------- --- -------
Petrogenetics, Inc. Common 0
FSC Holdings, Inc. Common 100 0
FOURTH: The number of votes cast for thc Plan by each voting
group entitled to vote was sufficient for approval of the merger by each
such voting group.
FIFTH: Following the merger there are no amendments to the
Articles of Incorporation of the surviving company.
SIXTH: The complete executed Plan is on file at the registered
office or other place of business of the Corporation.
SEVENTH: A copy of the Plan will be furnished by the Corporation,
on request and without cost, to any shareholder of either corporation which is a
party to the merger.
EIGHTH: The merger will be effective upon the filing of the
Articles of Merger. DATED this 8th day of May, 1997.
FSC HOLDINGS, INC., a Nevada corporation
By/s/Anita Patterson
--------------------------------------
Anita Patterson, President
STATE OF UTAH
SS
COUNTY OF SALT LAKE
On the 8th day of May, 1997, personally appeared before me Anita
Patterson, personally known to me or proved to me on the basis of satisfactory
evidence, and who, being by me duly sworn, did say that she is the President of
FSC Holdings, Inc., and that said document was signed by her in behalf of said
corporation by authority of its bylaws, and said Anita Patterson acknowledged to
me that said corporation executed the same.
/s/John S. Clayton
----------------------------------------
NOTARY PUBLIC
By/s/Robert Taylor
----------------------------------------
Robert Taylor, Secretary
STATE OF UTAH
SS
COUNTY OF SALT LAKE
On the 8th day of May, 1997, personally appeared before me Robert
Taylor, personally known to me or proved to me on the basis of satisfactory
evidence, and who, being by me duly sworn, did say that he is the Secretary of
FSC Holdings, Inc., and that said document was signed by her in behalf of said
corporation by authority of its bylaws, and said Anita Patterson acknowledged to
me that said corporation executed the same.
/s/John S. Clayton
----------------------------------------
NOTARY PUBLIC
PETROGENETICS, INC.
By/s/Robert Taylor
--------------------------------------
Robert Taylor, President
STATE OF UTAH
SS
COUNTY OF SALT LAKE
On the 8th day of May, 1997, personally appeared before me Robert
Taylor, personally known to me or proved to me on the basis of satisfactory
evidence, and who, being by me duly sworn, did say that he is the President of
Petrogenetics, Inc., and that said document was signed by her in behalf of said
corporation by authority of its bylaws, and said Anita Patterson acknowledged to
me that said corporation executed the same.
/s/John S. Clayton
----------------------------------------
NOTARY PUBLIC
By/s/Anita Patterson
--------------------------------------
Anita Patterson, Secretary
STATE OF UTAH
SS
COUNTY OF SALT LAKE
On the 8th day of May, 1997, personally appeared before me Anita
Patterson, personally known to me or proved to me on the basis of satisfactory
evidence, and who, being by me duly sworn, did say that she is the Secretary of
Petrogenetics, Inc., and that said document was signed by her in behalf of said
corporation by authority of its bylaws, and said Anita Patterson acknowledged to
me that said corporation executed the same.
/s/John S. Clayton
----------------------------------------
CERTIFICATE OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
HYPERION TECHNOLOGIES, INC.
We the undersigned as President and Secretary of Hyperion Technologies,
Inc. do hereby certify:
That the Board of Directors of said Corporation at a Hyperion
Technologies, Inc. meeting duly convened and held on the 29th day of June, 1999
adopted a Resolution to amend the original Articles as follows:
A. Delete Article I in its entirety and substitute in its place
the following:
Article One. The name of the Corporation is NextPath
Technologies, Inc.
Said amendment has been consented to and approved by the owners
of majority of the duly issued and outstanding shares of common stock which
represent a majority of sole class of common stock outstanding and entitled to
vote thereon. The change is effective immediately upon the filing of this
Certificate.
/s/James R. Ladd
-----------------------------------
James R. Ladd, President
/s/Joshua W. Ladd
-----------------------------------
Joshua W. Ladd, Secretary/Treasurer
STATE OF NORTH Carolina
SS
COUNTY OF Pebin
On this 20th day of July, 1999, personally appeared before me James R.
Ladd and Joshua W. Ladd personally known to me or provided to me on the basis of
satisfactory evidence to be the persons whose name is signed on the preceding
document, and acknowledged to me that they signed it voluntarily for its stated
purpose.
----------------------------------
NOTARY PUBLIC
CERTIFICATE OF AMENDMENT TO
THE ARTICLES OF INCORPORATION OF
PEAK DEVELOPMENT, INC.
We the undersigned as President and Secretary of Peak Development, Inc.
do hereby certify:
That the Board of Directors of said Corporation at a Peak
Development, Inc. meeting duly convened and held via telephone on the
1st day of May, 1997 adopted a Resolution to amend the original Articles
as follows:
A. Delete Article I in its entirety and substitute in its
place the following:
Article One. The name of the Corporation is FSC Holdings,
Inc.
Said amendment has been consented to and approved by the owners of
majority of the duly issued and outstanding shares of common stock which
represent a majority of the sole class of common stock outstanding and entitled
to vote thereon. The change is effective immediately upon the filing of this
Certificate.
/s/Anita Patterson
----------------------------------
Anita Patterson, President
/s/Robert Taylor
----------------------------------
Robert Taylor, Secretary/Treasurer
STATE OF UTAH
SS
COUNTY OF SALT LAKE
On this 1st day of May, 1997, personally appeared before me Anita
Patterson, personally known to me or provided to me on the basis of satisfactory
evidence to be the person whose
name is signed on the preceding document, and acknowledged to me that she signed
it voluntarily for its stated purpose.
/s/John S. Clayton
-----------------------------------
NOTARY PUBLIC
STATE OF UTAH
SS
COUNTY OF SALT LAKE
On this 1st day of May, 1997, personally appeared before me Robert
Taylor, personally known to me or provided to me on the basis of satisfactory
evidence to be the person whose name is signed on the preceding document, and
acknowledged to me that she signed it voluntarily for its stated purpose.
/s/John S. Clayton
-----------------------------------
NOTARY PUBLIC
ARTICLES OF INCORPORATION
OF
PEAK DEVELOPMENT, INC.
The undersigned, natural person of eighteen years or more of age,
acting as incorporator of a Corporation (the "Corporation") under the Nevada
Revised Statutes, adopts the following Articles of Incorporation for the
Corporation:
ARTICLE I
NAME OF CORPORATION
The name of the Corporation is Peak Development, Inc.
ARTICLE II SHARES
The aggregate number of shares which this Corporation shall have
the authority to issue is 100,000,000 shares of Common Stock, $.001 par value
per share, all of such common shares shall have the same rights and preferences
and shall be nonassessable; and 1,000,000 shares of Preferred Stock, $.001 par
value per share the preferred stock to be issued in such series with such
rights, preferences and designations as determined by the Corporation's board
of directors. The board of directors of the Corporation shall have complete
authority to prescribe, the classes, series and number of each class or series
of preferred stock and the voting powers, designations, preferences,
limitations, restrictions and relative rights of each class or series of the
preferred stock.
ARTICLE III
REGISTERED OFFICE AND AGENT
The address of the initial registered office of the Corporation
is 1025 Ridgeview, Suite 400, Reno, Nevada 89509 and the name of its initial
registered agent at such address is Michael J. Morrison.
ARTICLE IV INCORPORATOR
The name and address of the incorporator is:
NAME ADDRESS
Anita Patterson 215 South State Street, Suite 1100
Salt Lake City, Utah 84111
ARTICLE V
DIRECTORS
The members of the governing board of the Corporation shall be
known as directors, and the number of directors may from time to time be
increased or decreased in such manner as shall be provided by the bylaws of
the Corporation, provided that the number of directors shall not be reduced
to less than one (1). The name and post office address of the first board of
directors, which shall be two in number, are as follows:
NAME ADDRESS
Robert Taylor 620 East 3945 South
Salt Lake City, Utah 84107
Anita Patterson 380 East 4th Ave., Apt. A
Salt Lake City, Utah 84103
ARTICLE VI
GENERAL
A. The board of directors shall have the power and authority
to make and alter, or amend, the bylaws, to fix the amount in cash or
otherwise, to be reserved as working capital, and to authorize and cause to
be executed the mortgages and liens upon the property and franchises of the
Corporation.
B. The board of directors shall, from time to time, determine
whether, and to what extent, and at which times and places, and under what
conditions and regulations, the accounts and books of this Corporation, or any
of them, shall be open to the inspection of the stockholders; and no stockholder
shall have the right to inspect any account, book or document of this
Corporation except as conferred by the Statutes of Nevada, or authorized by the
directors or any resolution of the stockholders.
C. No sale, conveyance, transfer, exchange or other disposition
of all or substantially all of the property and assets of this Corporation shall
be made unless approved by the vote or written consent of the stockholders
entitled to exercise two-thirds (2/3) of the voting power of the Corporation.
D. The stockholders and directors shall have the power to hold
their meetings, and keep the books, documents and papers of the Corporation
outside of the State of Nevada, and at such place as may from time to time be
designated by the bylaws or by resolution of the board of directors or
stockholders, except as otherwise required by the laws of the State of Nevada.
2
E. The Corporation shall indemnify each present and future
officer and director of the Corporation and each person who serves at the
request of the Corporation as an officer or director of the Corporation,
whether or not such person is also an officer or director of the Corporation,
against all costs, expenses and liabilities, including the amounts of
judgments, amounts paid in compromise settlements and amounts paid for
services of counsel and other related expenses, which may be incurred by or
imposed on him in connection with any claim, action, suit, proceeding,
investigation or inquiry hereafter made, instituted or threatened in which he
may be involved as a party or otherwise by reason of any past or future action
taken or authorized and approved by him or any omission to act as such officer
or director, at the time of the incurring or imposition of such costs,
expenses, or liabilities, except such costs, expenses or liabilities as shall
relate to matters as to which he shall in such action, suit or proceeding, be
finally adjudged to be liable by reason of his negligence or willful misconduct
toward the Corporation or such other Corporation in the performance of his
duties as such officer or director, as to whether or not a director or officer
was liable by reason of his negligence or willful misconduct toward the
Corporation or such other Corporation in the performance of his duties as such
officer or director, in the absence of such final adjudication of the existence
of such liability, the board of directors and each officer and director may
conclusively rely upon an opinion of legal counsel selected by or in the manner
designed by the board of directors. The foregoing right of indemnification shall
not be exclusive of other rights to which any such officer or director may be
entitled as a matter of law or otherwise, and shall inure to the benefit of the
heirs, executors, administrators and assigns of each officer or director.
The undersigned being the individual named in Article III, above,
as the initial registered agent of the Corporation, hereby consents to such
appointment.
/s/Michael J. Morrison
-----------------------------------
The undersigned incorporator executed these Articles of
Incorporation, certifying that the facts herein stated are true this 29th day
of April, 1997.
/s/Anita Patterson
----------------------------------
STATE OF UTAH
SS
COUNTY OF SALT LAKE
3
Mail to:
Colorado Secretary of State
Corporations Office
1575 Sherman St., 2nd Floor
Denver, CO 80203
(303) 866-2361
ARTICLES OF INCORPORATION
I/We, the undersigned natural person(s) of the age of eighteen years or more,
acting as incorporator(s) of a corporation under the Colorado Corporation Act,
adopt the following Articles of Incorporation for such corporation:
FIRST: The name of the corporation is PETROCENETICS, INC.
SECOND: The period of duration is Perpetual
THIRD: The purpose or purposes for which the corporation is organized: Any Legal
and Lawful Purpose Pursuant to the Colorado Corporation Code. The purpose of the
corporation is to enhance oil production by the means of genetically engineered
microorganisms and any legal and lawful purpose pursuant to the Colorado
Corporation Code.
FOURTH: The aggregate number of shares which the corporation shall have the
authority to issue is 100,000,000 and the par value of each share shall be
1 mill (.001)
FIFTH: Cumulative voting of shares of stock is not aurthorized.
SIXTH: Provisions limiting or denying to shareholders the preemptive right to
acquire additional or treasury shares of the corporation, if any, are: to be
decided by a two-thirds majority of the Board of Directors.
SEVENTH: The address of the initial registered office of the corporation is 119
West Main, Florence, CO 81226
and the name of its initial registered agent as suchaddress is Craig B. Springer
EIGHTH: Address of the place ofbusiness: 119 West Main, Florence, CO 81226
NINTH: The number of directors constituting the initial board of directors of
the corporation is three, and the names and addresses of the persons who are to
serve as directors until the first annual meeting of shareholders or until their
successors are elected and shall qualify: (At least 3.)
NAME ADDRESS (include zip code)
Craig Springer Box 52, Florence. CO 81226
- ---------------------------------- ---------------------------
Jimmie Lloyd Box 229, Florence, CO 81226
- ---------------------------------- ---------------------------
George Barrante 811 Lincoln St. Su. 300.
- ---------------------------------- ---------------------------
Denver, CO 80203
TENTH: The name and address of each incorporator is: (At least l).
NAME ADDRESS (include zip code)
Craig B. Springer Box 52, Florence, CO 81226
- ---------------------------------- ---------------------------
- ---------------------------------- ---------------------------
Signed /s/Craig B. Springer
----------------------------
STATE OF COLORADO
SS
COUNTY OF FREMONT
The foregoing instrument was acknowledged before me this 21 day of March 1984
by Craig B. Springer
In witness whereof I have hereunto set my hand and seal.
My commission expires 2/23/1986
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Notary Public
119 West Main, Florence, CO 81226
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Address
BYLAWS
OF
FSC HOLDINGS, INC.
ARTICLE 1. OFFICES
1.1 Business Office. The principal office of the corporation
shall be located at any place either within or outside the State of Nevada as
designated in the corporation's most recent document on file with the Nevada
Secretary of State, Division of Corporations. The corporation may have such
other offices, either within or without the State of Nevada as the board of
directors may designate or as the business of the corporation may require from
time to time.
1.2 Registered Office. The registered office of the corporation
shall be located within the State of Nevada and may be, but need not be,
identical with the principal office. The address of the registered office may be
changed from time to time.
ARTICLE 2. SHAREHOLDERS
2.1 Annual Shareholder Meetine. The annual meeting of the
shareholders shall be held on the 8th day of May in each year, beginning with
the year 1997 at the hour of 2:00 p.m., or at such other time on such other day
within such month as shall be fixed by the board of directors, for the purpose
of electing directors and for the transaction of such other business as may come
before the meeting. If the day fixed for the annual meeting shall be a legal
holiday in the State of Nevada, such meeting shall be held on the next
succeeding business day.
2.2 Special Shareholder Meetine. Special meetings of the
shareholders, for any purpose or purposes described in the meeting notice, may
be called by the president, or by the board of directors, and shall be called by
the president at the request of the holders of not less than one-fourth of all
outstanding votes of the corporation entitled to be cast on any issue at the
meeting.
2.3 Place of Shareholder Meeting. The board of directors may
designate any place, either within or without the State of Nevada, as the place
of meeting for any annual or any special meeting of the shareholders, unless by
written consent, which may be in the form of waivers of notice or otherwise, all
shareholders entitled to vote at the meeting designate a different place, either
within or without the State of Nevada, as the place for the holding of such
meeting. If no designation is made by either the directors or unanimous action
of the voting shareholders, the place of meeting shall be at 215 South State
Street #1100, Salt Lake City, Utah 84111.
2.4 Notice of Shareholder Meeting. Written notice stating the
date, time, and place of any annual or special shareholder meeting 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
President, the board of directors, or other persons calling the meeting, to
each shareholder of record entitled to vote at such meeting and to any other
shareholder entitled by the Nevada Revised Statutes (the "Statutes") or the
articles of incorporation to receive notice of the meeting. Notice shall be
deemed to be effective at the earlier of: (1) when deposited in the United
States mail, addressed to the shareholder at his address as it appears on
the stock transfer books of the corporation, with postage thereon prepaid;
(2) on the date shown on the return receipt if sent by registered or
certified mail, return receipt requested, and the receipt is signed by or on
behalf of the addressee; (3) when received; or (4) 3 days after deposit in
the United States mail, if mailed postpaid and correctly addressed to an
address other than that shown in the corporation's current record of
shareholders.
If any shareholder meeting is adjourned to a different date, time
or place, notice need not be given of the new date, time and place, if the new
date, time and place is announced at the meeting before adjournment. But if the
adjournment is for more than 30 days or ifa new record date for the adjourned
meeting is or must be fixed, then notice must be given pursuant to the
requirements of the previous paragraph, to those persons who are shareholders as
of the new record date.
2.5 Waiver of Notice. A shareholder may waive any notice
required by the Statutes, the articles of incorporation, or these bylaws, by a
writing signed by the shareholder entitled to the notice, which is delivered to
the corporation (either before or after the date and time stated in the notice)
for inclusion in the minutes or filing with the corporate records.
A shareholder's attendance at a meeting:
(a) waives objection to lack of notice or defective
notice of the meeting, unless the shareholder at the beginning of
the meeting objects to holding the meeting or transacting
business at the meeting because of lack of notice or effective
notice; and
(b) waives objection to consideration of a
particular matter at the meeting that is not within the purpose
or purposes described in the meeting notice, unless the
shareholder objects to considering the matter when it is
presented.
2.6 Fixing of Record Date. For the purpose of determining
shareholders of any voting group entitled to notice of or to vote at any meeting
of shareholders, or shareholders entitled to receive payment of any
distribution, or in order to make a determination of shareholders for any other
proper purpose, the board of directors may fix in advance a date as the record
date. Such record date shall not be more than 70 days prior to the date on which
the particular action, requiring such determination of shareholders, is to be
taken. If no record date is
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so fixed by the board for the determination of shareholders entitled to notice
of, or to vote at a meeting of shareholders, the record date for determination
of such shareholders shall be at the close of business on the day the first
notice is delivered to shareholders. If no record date is fixed by the board
for the determination of shareholders entitled to receive a distribution, the
record date shall be the date the board authorizes the distribution. With
respect to actions taken in writing without a meeting, the record date shall be
the date the first shareholder signs the consent.
When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this Section, such
determination shall apply to any adjournment thereof unless the board of
directors fixes a new record date which it must do if the meeting is adjourned
to a date more than 120 days after the date fixed for the original meeting.
2.7 Shareholder List. After fixing a record date for a
shareholder meeting, the corporation shall prepare a list of the names of its
shareholders entitled to be given notice of the meeting. The shareholder list
must be available for inspection by any shareholder, beginning on the earlier of
10 days before the meeting for which the list was prepared or 2 business days
after notice of the meeting is given for which the list was prepared and
continuing through the meeting, and any adjournment thereof. The list shall be
available at the corporation's principal office or at a place identified
in the meeting notice in the city where the meeting is to be held.
2.8 Shareholder Quorum and Voting Requirements.
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2.8.1 Quorum. Except as otherwise required by the Statutes or
the articles of incorporation, a majority of the outstanding shares of the
corporation, represented by person or by proxy, shall constitute a quorum at
each meeting of the shareholders. If a quorum exists, action on a matter, other
than the election of directors, is approved if the votes cast favoring the
action exceed the votes cast opposing the action, unless the articles of
incorporation or the Statutes require a greater number of affirmative votes.
2.8.2 Voting of Shares. Unless otherwise provided in the
articles of incorporation or these bylaws, each outstanding share, regardless of
class, is entitled to one vote upon each matter submitted to a vote at a meeting
of shareholders.
2.9 Quorum and Voting reouirements of Voting Groups. If the
articles of, incorporation or the Statutes provide for voting by a single voting
group on a matter, action on that matter is taken when voted upon by that voting
group.
Once a share is represented for any purpose at a meeting, it
is deemed present for quorum purposes for the remainder of the meeting and for
any adjournment of that meeting unless a new record date is or must be set for
that adjourned meeting.
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Shares entitled to vote as a separate voting group may take
action on a matter at a meeting only if a quorum of those shares exists with
respect to that matter. Unless the articles of incorporation or the Statutes
provide otherwise, a majority of the votes entitled to be cast on the matter by
the voting group constitutes a quorum of that voting group for action on that
matter.
If the articles of incorporation or the Statutes provide for
voting by two or more voting groups on a matter, action on that matter is taken
only when voted upon by each of those voting groups counted separately. Action
may be taken by one voting group on a matter even though no action is taken by
another voting group entitled to vote on the matter.
If a quorum exists, action on a matter, other than the
election of directors, by a voting group is approved if the votes cast within
the voting group favoring the action exceed the votes cast opposing the action,
unless the articles of incorporation or the Statutes require a greater number of
affirmative votes.
2.10 Greater Quorum or Voting Requirements. The articles of
incorporation may provide for a greater quorum or voting requirement for
shareholders, or voting groups of shareholders, than is provided for by these
bylaws. An amendment to the articles of incorporation that adds, changes, or
deletes a greater quorum or voting requirement for shareholders must meet the
same quorum requirement and be adopted by the same vote and voting groups
required to take action under the quorum and voting requirement then in effect
or proposed to be adopted, whichever is greater.
2.11 Proxies. At all meetings of shareholders, a shareholder may
vote in person or by proxy which is executed in writing by the shareholder or
which is executed by his duly authorized attorney-in-fact. Such proxy shall be
filed with the Secretary of the corporation or other person authorized to
tabulate votes before or at the time of the meeting. No proxy shall be Valid
after 11 months from the date of its execution unless otherwise provided in the
proxy. All proxies are revocable unless they meet specific requirements of
irrevocability set forth in the Statutes. The death or incapacity of a voter
does not invalidate a proxy unless the corporation is put on notice. A
transferee for value who receives shares subject to an irrevocable proxy, can
revoke the proxy if he had no notice of the proxy.
2.12 Corporation's Acceptance of Votes.
2.12.1 If the name signed on a vote, consent, waiver,
proxy appointment, or proxy appointment revocation corresponds to the name of a
shareholder, the corporation, if acting in good faith, is entitled to accept
the vote, consent, waiver, proxy appointment, or proxy appointment revocation
and give it effect as the act of the shareholder.
2.12.2 If the name signed on a vote, consent, waiver, proxy
appointment, or proxy appointment revocation does not correspond to the name of
a shareholder, the corporation, if acting in good faith, is nevertheless
entitled to accept the vote, consent, waiver,
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proxy appointment, or proxy appointment revocation and give it effect as the act
of the shareholder if:
(a) the shareholder is an entity as defined in
the Statutes and the name signed purports to be that of an
officer or agent of the entity;
(b) the name signed purports to be that of an
administrator, executor, guardian, or conservator
representing the shareholder and, if the corporation
requests, evidence of fiduciary status acceptable to the
corporation has been presented with respect to the vote,
consent, waiver, proxy appointment or proxy appointment
revocation;
(c) the name signed purports to be that of a
receiver or trustee in bankruptcy of the shareholder
and, if the corporation requests, evidence of this status
acceptable to the corporation has been presented with
respect to the vote, consent, waiver, proxy appointment, or
proxy appointment revocation; or
(d) the name signed purports to be that of a
pledgee, beneficial owner, or attorney-in-fact of the
shareholder and, if the corporation requests, evidence
acceptable to the corporation of the signatory's authority
to sign for the shareholder has been presented with respect
to the vote, consent, waiver, proxy appointment or proxy
appointment revocation; or
(e) two or more persons are the shareholder as co-
tenants or fiduciaries and the name signed purports to be
the name of at least one of the co-owners and the person
signing appears to be acting on behalf of all co-tenants or
fiduciaries.
2.12.3 If shares are registered in the names of two or more
persons, whether fiduciaries, members of a partnership, co-tenants, husband and
wife as community property, voting trustees, persons entitled to vote under a
shareholder voting agreement or otherwise, or if two or more persons (including
proxy holders) have the same fiduciary relationship respecting the same shares,
unless the secretary of the corporation or other officer or agent entitled to
tabulate votes is given written notice to the contrary and is furnished with a
copy of the instrument or order appointing them or creating the relationship
wherein it is so provided, their acts with respect to voting shall have the
following effect:
(a) if only one votes, such actbinds all;
(b) if more than one votes, the act of the majority
so voting bind all;
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(c) if more than one votes, but the vote is evenly
split on any particular matter, each raction may vote the
securities in question proportionately.
If the instrument so filed or the registration of the shares
shows that any tenancy is held in unequal interests, a majority or even split
for the purpose of this Section shall be a majority or even split in interest.
2.12.4 The corporation is entitled to reject a vote,
consent, waiver, proxy appointment or proxy appointment revocation if the
secretary or other officer or agent authorized to tabulate votes, acting in good
faith, has reasonable basis for doubt about the validity of the signature on
it or about the signatory's authority to sign for the shareholder.
2.12.5 The corporation and its officer or agent who accepts
or rejects a vote, consent, waiver, proxy appointment or proxy appointment
revocation in good faith and in accordance with the standards of this Section
are not liable in damages to the shareholder for the consequences of the
acceptance or rejection.
2.12.6 Corporate action based on the acceptance or rejection
of a vote, consent, waiver, proxy appointment or proxy appointment revocation
under this Section is valid unless a court of competent jurisdiction determines
otherwise.
2.13 Action bv Shareholders Without a Meeting.
2.13.1 Written Consent. Any action required or permitted to
be taken at a meeting of the shareholders may be taken without a meeting and
without prior notice if one or more consents in writing, setting forth the
action so taken, shall be signed by the holders of Outstanding shares having not
less than the minimum ntunber of votes that would be necessary to authorize'or
take such action at a meeting at which all shareholders entitled to vote with
respect to the subject matter thereof were present and voted. Action taken under
this Section has the same effect as action taken at a duly called and convened
meeting of shareholders and may be described as such in any document.
2.13.2 Post-Consent Notice. Unless the written consents of
all shareholders entitled to vote have been obtained, notice of any shareholder
approval withoui a meeting shall be given at least ten days before the
consummation of the action authorized by such approval to (i) those shareholders
entitled to vote who did not consent in writing, and (ii) those shareholders not
entitled to vote. Any such notice must be accompanied by the same material that
is required under the Statutes to be sent in a notice of meeting at which the
proposed action would have been submitted to the shareholders for action.
2.13.3 Effective Date and Revocation of Consents. No action
taken pursuant to this Section shall be effective unless all written consents
necessary to support the
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action are received by the corporation within a sixty-day period and not
revoked. Such action is effective as of the date the last written consent is
received necessary to effect the action, unless all of the written consents
specify an earlier or later date as the effective date of the action. Any
shareholder giving a written consent pursuant to this Section may revoke the
consent by a signed writing describing the action and stating that the consent
is revoked, provided that such writing is received by the corporation prior to
the effective date of the action.
2.13.4 Unanimous onsent for Election of Directors.
Notwithstanding subsection (a), directors may not be elected by written consent
unless such consent is unanimous by all shares entitled to vote for the election
of directors.
2.14 Voting for Director. Unless otherwise provided in the
articles of incorporation, every shareholder entitled to vote for the election
of directors has the fight to cast, in person or by proxy, all of the votes to
which the shareholder's shares are entitled for as many persons as there are
directors to be elected and for whom election such shareholder has the fight to
vote. Directors are elected by a plurality of the votes cast by the shares
entitled to vote in the election at a meeting at which a quorum is present.
ARTICLE 3. BOARD OF DIRECTORS
3.1 General Powers. Unless the articles of incorporation have
dispensed with or limited the authority of the board of directors by describing
who will perform some or all of the duties of a board of directors, all
corporate powers shall be exercised by or under the authority, and the business
and affairs of the corporation shall be managed under the direction, of the
board of directors.
3.2 Number, Tenure and Qualification of Directions. The
authorized number of directors shall be two (2); provided, however, that if the
corporation has less than two shareholders entitled to vote for the election
of directors, the board of directors may consist or a number of individuals
equal to or greater than the number of those shareholders. The current number
of directors shall be within the limit specified above, as determined (or as
amended form time to time) by a resolution adopted by either the shareholders
or the directors. Each director shall hold office until the next annual meeting
of shareholders or until the director's earlier death, resignation, or removal.
However, if his term expires, he shall continue to serve until his successor
shall have been elected and qualified, or until there is a decrease in the
number of directors. Directors do not need to be residents of Nevada or
shareholders of the corporation~
3.3 Regular Meetings of the Board of Directors. A regular meeting
of the board of directors shall be held without other notice than this bylaw
immediately after, and at the same place as, the annual meeting of shareholders,
for the purpose of appointing officers and transacting such other business as
may come before the meeting. The board of directors may provide, by resolution,
the time and place for the holding of additional regular meetings without
other notice than such resolution.
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3.4 Special Meetings of the Board of Directors. Special meetings
of the board of directors may be called by or at the request of the president or
any director. The person authorized to call special meetings of the board of
directors may fix any place as the place for holding any special meeting of the
board of directors.
3.5 Notice of, and Waiver of Notice for, Special Director
Meeting. Unless the articles of incorporation provide for a longer or shorter
period, notice of the date, time, and place of any special director meeting
shall be given at least two days previously thereto either orally or in writing.
Any director may waive notice of any meeting. Except as provided in the next
sentence, the waiver must be in writing and signed by the director entitled to
the notice. The attendance of a director at a meeting shall constitute a waiver
of notice of such meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business and at the
beginning of the meeting (or promptly upon his arrival) objects to holding the
meeting or transacting business at the meeting, and does not thereafter vote
for or assent to action taken at the meeting. Unless required by the articles
of incorporation, neither the business to be transacted at, nor the purpose of,
any special meeting of the board of directors need be specified in the notice
or waiver of notice of such meeting.
3.6 Director Quorum and Voting.
3.6.1 Quorum. A majority of the number of directors
prescribed by resolution shall constitute a quorum for the transaction of
business at any meeting of the board of directors unless the articles of
incorporation require a greater percentage.
Unless the articles of incorporation provide otherwise, any
or all directors may participate in a regular or special meeting by, or conduct
the meeting through the use of, any means of communication by which all
directors participating may simultaneously hear each other during the meeting. A
director participating in a meeting by this means is deemed to be present in
person at the meeting.
A director who is present at a meeting of the board of
directors or a committee of the board of directors when corporate action is
taken is deemed to have assented to the action taken unless: (1) the director
objects at the beginning of the meeting (or promptly upon his arrival) to
holding or transacting business at the meeting and does not thereafter vote
for or assent to any action taken at the meeting; and (2) the director
contemporaneously requests his dissent or abstention as to any specific action
be entered in the minutes of the meeting; or (3) the director causes written
notice of his dissent or abstention as to any specific action be received by
the presiding officer of the meeting before its adjournment or to the
corporation immediately after adjournment of the meeting. The right of dissent
or abstention is not available to a director who votes in favor of the action
taken.
3.7 Director Action Without a Meeting. Any action required or
permitted to be taken by the board of directors at a meeting may be taken
without a meeting if all the directors
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consent to such action in writing. Action taken by consent is effective when
the last director signs the consent, unless, prior to such time, any director
has revoked a consent by a signed writing received by the corporation, or
unless the consent specifies a different effective date. A signed consent has
the effect of a meeting vote and may be described as such in any document.
3.8 Resignation of Directors. A director may resign at any time
by giving a written notice of resignation to the corporation. Such resignation
is effective when the notice is received by the corporation, unless the notice
specifies a later effective date.
3.9 Removal of Directors. The shareholders may remove one or more
directors at a meeting called for that purpose if notice has been given that a
purpose of the meeting is such removal. The removal may be with or without
cause unless the articles of incorporation provide that directors may only be
removed with cause. If a director is elected by a voting group of shareholders,
only the shareholders of that voting group may participate in the vote to remove
him. A director may be removed only if the number of votes cast to remove him
exceeds the number of votes cast not to remove him.
3.10 Board of Director Vacancies. Unless the articles of
incorporation provide otherwise, if a vacancy occurs on the board of directors,
including a vacancy resulting from an increase in the number of directors, the
shareholders may fill the vacancy. During such time that the shareholders fail
or are unable to fill such vacancies then and until the shareholders act:
(a) the board of directors may fill the vacancy; or
(b) if the board of directors remaining in office
constitute fewer than a quorum of the board, they may fill the
vacancy by the affirmative vote or a majority of all the
directors remaining in office.
If the vacant office was held by a'director elected by a voting
group of shareholders:
(a) if there are one or more directors elected by
the same voting group, only such directors are entitled to vote
to fill the vacancy if it is filled by the directors; and
(b) only the holders of shares of that voting group
are entitled to vote to fill the vacancy if it is filled by the
shareholders.
A vacancy that will occur at a specific later date (by reason of
a resignation effective at a later date) may be filled before the vacancy occurs
but the new director may not take office until the vacancy occurs.
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3.11 Director Compensation. By resolution of the board of
directors, each director may be paid his expenses, if any, of attendance at each
meeting of the board of directors and may be paid a stated salary as director
or a fixed sum for attendance at each meeting of the board of directors or both.
No such payment shall preclude any director from serving the corporation in
any other capacity and receiving compensation therefor.
3.12 Director Committees.
3.12.1 Creation of Committees. Unless the articles of
incorporation provide otherwise, the board of directors may create one or more
committees and appoint members of the board of directors to serve on them. Each
committee must have one or more members, who shall serve at the pleasure of the
board of directors.
3.12.2 Selection of Members. The creation of a committee
and appointment of members to it must be approved by the greater of (l) a
majority of all the directors in office when the action is taken or (2) the
number of directors required by the articles of incorporation to take such
action.
3.12.3 Required Procedures. Those Sections of this Article
3 which govern meetings, actions without meetings, notice and waiver of notice,
quorum and voting requirements of the board of directors, apply to committees
and their members.
3.12.4 Authority. Unless limited by the articles of
incorporation, each committee may exercise those aspects of the authority of
the board of directors which the board of directors confers upon such committee
in the resolution creating the committee. Provided, however, a committee may
not:
(a) authorize distributions;
(b) approve or propose to shareholders action that
the Statutes require be approved by shareholders;
(c) fill vacancies on the board of directors or on
any of its committees;
(d) amend the articles of incorporation pursuant to
the authority of directors to do so;
(e) adopt, amend or repeal bylaws;
(f) approve a plan of merger not requiring
shareholder approval;
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(g) authorize or approve reacquisition of shares,
except according to a formula or method prescribed by the board
of directors; or
(h) authorize or approve the issuance or sale or
contract for sale of shares or determine the designation and
relative rights, preferences and limitations of a class or series
of shares, except that the board of directors may authorize a
committee (or an officer) to do so within limits specifically
prescribed by the board of directors.
ARTICLE 4. OFFICERS
4.1 Number of Officers. The officers of the corporation Shall be
a president, a secretary and a treasurer, each of whom shall be appointed by
the board of directors. Such other officers and assistant officers as may be
deemed necessary, including any vice presidents, may also be appointed by the
board of directors. If specifically authorized by the board of directors, an
officer may appoint one or more officers or assistant officers. The same
individual may simultaneously hold more than one office in the corporation.
4.2 Appointment and Term of Office. The officers of the
corporation shall be appointed by the board of directors for a term as
determined by the board of directors. If no term is specified, they shall hold
office until the first meeting of the directors held after the next annual
meeting of shareholders. If the appointment of officers shall not be made at
such meeting, such appointment shall be made as soon thereafter as is
convenient. Each officer shall hold office until his successor shall have been
duly appointed and shall have qualified until his death, or until he shall
resign or is removed.
The designation of a specified term does not grant to the officer
any contract rights, and the board may remove the officer at any time prior to
the termination of such term.
4.3 Removal of Officers. Any officer or agent may be removed by
the board of directors at any time, with or without cause. Such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Appointment of an officer or agent shall not of itself create contract rights.
4.4 Resignation of Officers. Any officer may resign at any time,
subject to why rights or obligations under any existing contracts between the
officers and the corporation, by giving notice to the president or board of
directors. An officer's resignation shall take effect at the time specified
therein, and the acceptance of such resignation shall not be necessary to make
it effective.
4.5 President. Unless the board of directors has designated the
chairman of the board as chief executive officer, the president shall be the
chief executive officer of the corporation and, subject to the control of the
board of directors, shall in general supervise and
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control all of the business and affairs of the corporation. Unless there is a
chairman of the board, the president shall, when present, preside at all
meetings of the shareholders and of the board of directors. The president may
sign, with the secretary or any other proper officer of the corporation
thereunder authorized by the board of directors, certificates for shares of the
corporation and deeds, mortgages, bonds, contracts, or other instruments which
the board of directors has authorized to be executed, except in cases where the
signing and execution thereof shall be expressly delegated by the board of
directors or by these bylaws to some other officer or agent of the corporation,
or shall be required by law to be otherwise signed or executed; and in
general shall perform all duties incident to the office of president and such
other duties as may be prescribed by the board of directors from time to time.
4.6 Vice Presidents. If appointed, in the absence of the
president or in the event of his death, inability or refusal to act, the vice
president (or in the event there be more than one vice president, the vice
presidents in the order designate at the time of their election, or in
the absence of any designation, then in the order of their appointment) shall
perform the duties of the president, and when so acting, shall have all the
powers of, and be subject to, all the restrictions upon the president.
4.7 Secretary. The secretary shall: (a) keep the minutes of the
proceedings of the shareholders, the board of directors, and any committees of
the board in one or more books provided for that purpose; (b) see that all
notices are duly given in accordance with these provisions of these bylaws or as
required by law; (c) be custodian of the corporate records; (d) when requested
or required, authenticate any records of the corporation; (e) keep a register of
the post office address of each shareholder which shall be furnished to the
secretary by such shareholder; (f) sign with the president, or a vice president,
certificates for shares of the corporation, the issuance of which shall have
been authorized by resolution of the board of directors; (g) have general charge
of the stock transfer books of the corporation; and (h) in general perform all
duties incident to the office of secretary and such other duties as from time to
time may be assigned by the president or by the board of directors. Assistant
secretaries, if any, shall have the same duties and powers, subject to the
supervision of the secretary.
4.8 Treasurer. The treasurer shall: (a) have charge and custody
of and be responsible for all funds and securities of the corporation; (b)
receive and give receipts for monies due and payable to the corporation from any
source whatsoever, and deposit all such moneys in the name of the corporation
in such bank, trust companies, or other depositaries shall be selected by the
board of directors; and (c) in general perform all of the duties incident to
the office of treasurer and such other duties as from time to time may be
assigned by the president or by the board of directors. If required by the
board of directors, the treasurer shall give a bond for the faithful discharge
of his or her duties in such sum and with such surety or sureties as the board
of directors shall determine. Assistant treasurers, if any, shall have the same
powers and duties, subject to the supervision of the treasurer.
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4.9 Salaries. The salaries of the officers shall be fixed from
time to time by the board of directors.
ARTICLE 5. INDEMNIFICATION OF DIRECTORS,
OFFICERS, AGENTS, AND EMPLOYEES
5.1 Indemnification of Directors. Unless otherwise provided in
the articles of incorporation, the corporation shall indemnify any individual
made a party to a proceeding because the individual is or was a director of the
corporation, against liability incurred in the proceeding, but only if such
indemnification is both (i) determined permissible and (ii) authorized, as such
are defined in subsection (a) of this Section 5. I.
5.1.1 Determination of Authorization. The corporation shall
not indemnify a director under this Section unless:
(a) a determination has been made in accordance
with the procedures set forth in the Statutes that the director
met the standard of conduct set forth in subsection (b) below,
and
(b) payment has been authorized in accordance with
the procedures set forth in the Statutes based on a conclusion
that the expenses are reasonable, the corporation has the
financial ability to make the payment, and the financial
resources of the corporation hould be devoted to this use rather
than some other use by the corporation.
5.1.2 Standard of Conduct. The individual shall demonstrate
that:
(a) he or she conducted himself in good faith; and
(b) he or she reasonably believed:
(i) in the case of conduct in his official
capacity with the corporation, that his conduct wasin its
best interests;
(ii) in all other cases, that his conduct was
at least not, opposed to its best interests; and
(iii) in the case of any criminal proceeding,
he or she had no reasonable cause to believe his conduct was
unlawful.
5.1.3 Indemnification in Derivative Actions Limited.
Indemnification permitted under this Section in connection with a proceeding by
or in the right of the corporation is limited to reasonable expenses incurred in
connection with the proceeding.
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5.1.4 Limitation on Indemnification. The corporation shall
not indemnify a director under this Section of Article 5:
(a) in connection with a proceeding by or in the
right of the corporation in which the director was adjudged
liable to the corporation; or
(b) in connection with any other proceeding charging
improper personal benefit to the director, whether or not
involving action in his or her official capacity, in which he or
she was adjudged liable on the basis that personal benefit was
improperly received by the director.
5.2 Advance of Expenses for Directors. If a determination is
made following the procedures of the Statutes, that the director has met the
following requirements, and if an authorization of payment is made following
the procedures and standards set forth in the Statutes, then unless otherwise
provided in the articles of incorporation, the corporation shall pay for or
reimburse the reasonable expenses incurred by a director who is a party to
a proceeding in advance of final disposition of the proceeding, if:
(a) the director furnishes the corporation a written
affirmation of his good faith belief that he has met the standard
of conduct described in this section;
(b) the director furnishes the corporation a written
undertaking, executed personally or on his behalf, to repay the
advance if it is ultimately determined that he di not meet the
standard of conduct;
(c) a determination is made that the facts then
known to those making the determination would not preclude
indemnification under this Section or the Statutes.
5.3 Indemnification of Officers. Agents and Employees Who Are Not
Directors. Unless otherwise provided in the articles of incorporation, the board
of directors may indemnify and advance expenses to any officer, employee, or
agent of the corporation, who is not a director of the corporation, to the
same extent as to a director, or to any greater extent consistent with. public
policy, as determined by the general or specific actions of the board of
directors.
5.4 Insurance. By action of the board of directors,
notwithstanding any interest of the directors in such action, the corporation
may purchase and maintain insurance on behalf of a person who is or was a
director, officer, employee, fiduciary or agent of the corporation, against
any liability asserted against or incurred by such person in that capacity or
arising from such person's status as a director, officer, employee, fiduciary,
or agent, whether or not the corporation would have the power to indemnify such
person under the applicable provisions of the Statutes.
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ARTICLE 6. STOCK
6.1 Issuance of Shares. The issuance or sale by the corporation
of any shares of its authorized capital stock of any class, including treasury
shares, shall be made only upon authorization by the board of directors, unless
otherwise provided by statute. The board of directors may authorize the issuance
of shares for consideration consisting of any tangible or intangible property or
benefit to the corporation, including cash, promissory notes, services
performed, contracts or arrangements for services to be performed, or other
securities of the corporation. Shares shall be issued for such consideration
expressed in dollars as shall be fixed from time to time by the board of
directors.
6.2 Certificates for Shares.
6.2.1 Content. Certificates representing shares of the
corporation shall at minimum, state on their face the name of the issuing
corporation and that it is formed under the laws of the State of Nevada; the
name of the person to whom issued; and the number and class of shares and the
designation of the series, if any, the certificate represents; and be in such
form as determined by the board of directors. Such certificates shall be signed
(either manually or by facsimile) by the president or a vice president and by
the secretary or an assistant secretary and may be sealed with a corporate seal
or a facsimile thereof. Each certificate for shares shall be consecutively
numbered or otherwise identified.
6.2.2 Legend as to Class or Series. If the corporation is
authorized to issue different classes of shares or different series within a
class, the designations, relative rights, preferences and limitations applicable
to each class and the variations in rights, preferences and limitations
determined for each series (and the authority of the board of directors to
determine variations for future series) must be summarized on the front or back
of each certificate. Alternatively, each certificate may state conspicuously on
its front or back that the corporation will furnish the shareholder this
information on request in writing and without charge.
6.2.3 Shareholder List. The name and address of the person
to whom the shares represented thereby are issued, with the number of shares and
date of issue, shall be entered on the stock transfer books of the corporation.
6.2.4 Transferring Shares. All certificates surrendered to
the corporation for transfer shall be canceled and no new certificate shall be
issued until the former certificate for a like number of shares shall have been
surrendered and canceled, except that in cash of a lost, destroyed, or mutilated
certificate, a new one may be issued therefor upon such terms and indemnity to
the corporation as the board of directors may prescribe.
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6.3 Shares Without Certificates.
6.3.1 Issuing Shares Without Certificates. Unless the
articles of incorporation provide otherwise, the board of directors may
authorize the issue of some or all the shares of any or all of its classes or
series without certificates. The authorization does not affect shares already
represented by certificatesuntil they are surrendered to the corporation.
6.3.2 Information Statement Required. Within a reasonable
time after the issue or transfer of shares without certificates, the corporation
shall send the shareholder a written statement containing, at a minimum, the
information required by the Statutes.
6.4 Registration of the Transfer of Shares. Registration of the
transfer of shares of the corporation shall be made only on the stock transfer
books of the corporation. In order to register a transfer, the record owner
shall surrender the shares to the corporation for cancellation, properly
endorsed by the appropriate person or persons with reasonable assurances that
the endorsements are genuine and effective. Unless the corporation has
established a procedure by which a beneficial owner of shares held by a nominee
is to be recognized by the corporation as the owner, the person in whose name
shares stand in the books of the corporation shall be deemed by the corporation
to be the owner thereof for all purposes.
6.5 Restrictions on Transfer or Registration of Shares. The
board of directors or shareholders may impose restrictions on the transfer or
registration of transfer of shares (including any security convertible into, or
carrying a right to subscribe for or acquire shares). A restriction does not
affect shares issued before the restriction was adopted unless the holders of
the shares are parties to the restriction agreement or voted in favor of or
otherwise consented to the restriction.
A restriction on the transfer or registration of transfer of
shares may be authorized:
(a) to maintain the corporation's status when it is
dependent on the number or identity of its shareholders;
(b) to preserve entitlements, benefits or exemptions
under federal or local laws; and
(c) for any other reasonable purpose.
A restriction on the transfer or registration of transfer of
shares may:
(a) obligate the shareholder first to offer the
corporation or other persons (separately, consecutively or
simultaneously) an opportunity to acquire the restricted shares;
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(b) obligate the corporation or other persons
(separately, consecutively or simultaneously) to acquire the
restricted shares;
(c) require as a condition to such transfer or
registration, that any one or more persons, including the
holders of any of its shares, approve the transfer or
registration if the requirement is not manifestly
unreasonable; or
(d) prohibit the transfer or the registration
of transfer of the restricted shares to designated persons or
classes of persons, if the prohibition is not manifestly
unreasonable.
A restriction on the transfer or registration of transfer of
shares is valid and enforceable against the holder or a transferee of the holder
if the restriction is authorized by this Section and its existence is noted
conspicuously on the front or back of the certificate or is comained in the
information statement required by this Article 6 with regard to shares issued
without certificates. Unless so noted, a restriction is not enforceable against
a person without knowledge of the restriction.
6.6 Corporation's Acquisition of Shares. The corporation may
acquire its own shares and the shares so acquired constitute authorized but
unissued shares.
If the articles of incorporation prohibit the reissue of
acquired shares, the number of authorized shares is reduced by the number of
shares acquired, effective upon amendment of the articles of incorporation,
which amendment may be adopted by the shareholders or the board of directors
without shareholder action. The articles of amendment must be delivered to
the Secretary of State and must set forth:
(a) the name of the corporation;
(b) the reduction in the number of authorized
shares, itemized by class and series;
(c) the total number of authorized shares,
itemized by class and series, remaining after reduction of the
shares; and
(d) a statement that the amendment was adopted by
the board of directors without shareholder action and that
shareholder action was not required.
ARTICLE 7. DISTRIBUTIONS
7.1 Distributions to Shareholders. The board of directors may
authorize, and the corporation may make, distributions to the shareholders
of the corporation subject to any restrictions in the corporation's articles
of incorporation and in the Statutes.
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7.2 Unclaimed Distributions. If the corporation has mailed three
successive distributions to a shareholder at the shareholder's address as shown
on the corporation's current record of shareholders and the distributions have
been returned as undeliverable, no further attempt to deliver distributions to
the shareholder need be made until another address for the shareholder is made
known to the corporation, at which time all distributions accumulated by reason
of this Section, except as otherwise provided by law, be mailed to the
shareholder at such other address.
ARTICLE 8. MISCELLANEOUS
8.1 Inspection of Records by Shareholders and Directors. A
shareholder or director of a corporation is entitled to inspect and copy, during
regular business hours at the corporation's principal office, any of the records
of the corporation required to be maintained by the corporation under the
Statutes, if such person gives the corporation written notice of the demand at
least five business days before the date on which such a person wishes to
inspect and copy. The scope of Such inspection right shall be as provided under
the Statutes.
8.2 Corporate Seal. The board of directors may provide a
corporate seal which may be circular in form and have inscribed thereon any
designation including the name of the corporation, the state of incorporation,
and the words "Corporate Seal."
8.3 Amendments. The corporation's board of directors may amend
or repeal the corporation's bylaws at any time unless:
(a) the articles of incorporation or the Statutes
reserve this power exclusively to the shareholders in whole or
part; or
(b) the shareholders in adopting, amending, or
repealing a particular bylaw provide expressly that the board of
directors may not amend or repeal that bylaw; or
(c) the bylaw either establishes, amends, or
deletes, a greater shareholder quorum or voting requirement.
Any amendment which changes the voting or quorum requirement for
the board must meet the same quorum requirement and be adopted by the same vote
and voting groups required to take action under the quorum and voting
requirements then in effect or proposed to be adopted, whichever are greater.
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SECOND AMENDED BYLAWS
OF
NEXTPATH TECHNOLOGIES, INC.
ARTICLE 1. OFFICES
1.1 Business Office. The principal office of the corporation
shall be located at any place either within or outside the State of Nevada as
designated in the corporation's most recent document on file with the Nevada
Secretary of State. The corporation may have such other offices, either within
or without the State of Nevada, as the board of directors may designate or as
the business of the corporation may require from time to time.
1.2 Registered Office. The registered office of the corporation
shall be located within the State of Nevada and may be, but need not be,
identical with the principal office. The address of the registered office may be
changed from time to time.
ARTICLE 2. SHAREHOLDERS
2.1 Annual Shareholder Meeting. An annual meeting of the
shareholders for the election of directors and for the transaction of such other
business as may come before the meeting shall be held at the time, date and
place, within or outside the State of Nevada, designated by the board of
directors and stated in the meeting notice. If the day fixed for the annual
meeting is a legal holiday in the State of Nevada, the meeting shall be held on
the next succeeding business day.
2.2 Special Shareholder Meeting. Special meetings of the
shareholders, for any purpose or purposes described in the meeting notice, may
be called by the president, or by the board of directors, and shall be called by
the president at the request of the holders of not less than one-fourth of all
outstanding votes of the corporation entitled to be cast on any issue at the
meeting.
2.3 Place of Shareholder Meeting. The board of directors may
designate any place, either within or without the State of Nevada, as the place
of meeting for any annual or any special meeting of the shareholders, unless by
written consent, which may be in the form of waivers of notice or otherwise, all
shareholders entitled to vote at the meeting designate a different place, either
within or without the State of Nevada, as the place for the holding of such
meeting.
2.4 Notice of Shareholder Meeting. Written notice stating the
date, time, and place of any annual or special shareholder meeting shall be
delivered not less than ten (10) nor more than sixty (60) days before the date
of the meeting, either personally or by mail, by or at the direction of the
President, the board of directors, or other persons calling the meeting, to each
shareholder of record entitled to vote at such meeting and to any other
shareholder entitled by the Nevada Revised Statues (the "Statutes") or the
corporation's Articles of Incorporation to receive notice of the meeting. Notice
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shall be deemed to be effective at the earlier of: (1) when deposited in the
United States mail, addressed to the shareholder at his address as it appears on
the stock transfer books of the corporation, with postage thereon prepaid; or
(2) on the date shown on the return receipt if sent by registered or certified
mail, return receipt requested, and the receipt is signed by or on behalf of the
addressee; or (3) when received; or (4) three (3) days after deposit in the
United States mail, if mailed postpaid and correctly addressed to an address
other than that shown in the corporation's current record of shareholders.
If any shareholder meeting is adjourned to a different date, time
or place, notice need not be given of the new date, time and place, if the new
date, time and place is announced at the meeting before adjournment. But if the
adjournment is for more than thirty (30) days or if a new record date for the
adjourned meeting is or must be fixed, then notice must be given pursuant to the
requirements of the previous paragraph, to those persons who are shareholders as
of the new record date.
2.5 Waiver of Notice. A shareholder may waive any notice required
by the Statutes, the Articles of Incorporation, or these Bylaws, by a writing
signed by the shareholder entitled to the notice, which is delivered to the
corporation (either before or after the date and time stated in the notice) for
inclusion in the minutes or filing with the corporate records.
A shareholder's attendance at a meeting:
(a) waives objection to lack of notice or defective notice
of the meeting, unless the shareholder at the beginning of the meeting
objects to holding the meeting or transacting business at the meeting
because of lack of notice or effective notice; and
(b) waives objection to consideration of a particular
matter at the meeting that is not within the purpose or purposes
described in the meeting notice, unless the shareholder objects to
considering the matter when it is presented.
2.6 Fixing of Record Date. For the purpose of determining
shareholders of any voting group entitled to notice of, or to vote at, any
meeting of shareholders, or shareholders entitled to receive payment of any
distribution, or in order to make a determination of shareholders for any other
purpose, the board of directors may fix in advance a date as the record date.
The record date shall not be more than seventy (70) days prior to the date on
which the particular action requiring such determination of shareholders is to
be taken. If no record date is so fixed by the board for the determination of
shareholders entitled to notice of, or to vote at, a meeting of shareholders,
the record date for determination of those shareholders shall be at the close of
business on the day the first notice is delivered to shareholders. If no record
date is fixed by the board for the determination of shareholders entitled to
receive a distribution, the record date shall be the date the board authorizes
the distribution. With respect to actions taken in writing without a meeting,
the record date shall be the date the first shareholder signs the consent.
When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this Section, that
determination shall apply to any adjournment of the meeting unless the board of
directors fixes a new record date, which it must do if the meeting is adjourned
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to a date more than one hundred twenty (120) days after the date fixed for the
original meeting.
2.7 Shareholder List. After fixing a record date for a
shareholder meeting, the corporation shall prepare a list of the names of its
shareholders entitled to be given notice of the meeting. The shareholder list
must be available for inspection by any shareholder, beginning on the earlier of
ten (10) days before the meeting for which the list was prepared or two (2)
business days after notice of the meeting is given for which the list was
prepared and continuing through the meeting, and any adjournment of the meeting.
The list shall be available at the corporation's principal office or at a place
identified in the meeting notice in the city where the meeting is to be held.
2.8 Shareholder Quorum and Voting Requirements.
2.8.1 Quorum. Except as otherwise required by the Statutes
or the Articles of Incorporation, a majority of the outstanding shares
of the corporation, represented by person or by proxy, shall constitute
a quorum at each meeting of the shareholders. If a quorum exists, action
on a matter, other than the election of directors, is approved if the
votes cast favoring the action exceed the votes cast opposing the
action, unless the Articles of Incorporation or the Statutes require a
greater number of affirmative votes.
2.8.2 Voting of Shares. Unless otherwise provided in the
Articles of Incorporation or these Bylaws, each outstanding share,
regardless of class, is entitled to one vote upon each matter submitted
to a vote at a meeting of shareholders.
2.9 Quorum and Voting Requirements of Voting Groups. If the
Articles of Incorporation or the Statutes provide for voting by a single voting
group on a matter, action on that matter is taken when voted upon by that voting
group.
Once a share is represented for any purpose at a meeting, it is
deemed present for quorum purposes for the remainder of the meeting and for any
adjournment of the meeting unless a new record date is or must be set for that
adjourned meeting.
Shares entitled to vote as a separate voting group may take
action on a matter at a meeting only if a quorum of those shares exists with
respect to that matter. Unless the Articles of Incorporation or the Statutes
provide otherwise, a majority of the votes entitled to be cast on the matter by
the voting group constitutes a quorum of that voting group for action on that
matter.
If the Articles of Incorporation or the Statutes provide for
voting by two or more voting groups on a matter, action on that matter is taken
only when voted upon by each of those voting groups counted separately. Action
may be taken by one voting group on a matter even though no action is taken by
another voting group entitled to vote on the matter.
If a quorum exists, action on a matter, other than the election
of directors, by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the action, unless the
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Articles of Incorporation or the Statutes require a greater number of
affirmative votes.
2.10 Greater Quorum or Voting Requirements. The Articles of
Incorporation may provide for a greater quorum or voting requirement for
shareholders, or voting groups of shareholders, than is provided for by these
Bylaws. An amendment to the Articles of Incorporation that adds, changes, or
deletes a greater quorum or voting requirement for shareholders must meet the
same quorum requirement and be adopted by the same vote and voting groups
required to take action under the quorum and voting requirement then in effect
or proposed to be adopted, whichever is greater.
2.11 Proxies. At all meetings of shareholders, a shareholder may
vote in person or by proxy which is executed in writing by the shareholder or
which is executed by his duly authorized attorney-in-fact. The proxy shall be
filed with the Secretary of the corporation or other person authorized to
tabulate votes before or at the time of the meeting. No proxy shall be valid
after eleven (11) months from the date of its execution unless otherwise
provided in the proxy. All proxies are revocable unless they meet specific
requirements of irrevocability set forth in the Statutes. The death or
incapacity of a voter does not invalidate a proxy unless the corporation is put
on notice. A transferee for value who receives shares subject to an irrevocable
proxy, can revoke the proxy if he had no notice of the proxy.
2.12 Corporation's Acceptance of Votes.
2.12.1 If the name signed on a vote, consent, waiver,
proxy appointment, or proxy appointment revocation corresponds to the
name of a shareholder, the corporation, if acting in good faith, is
entitled to accept the vote, consent, waiver, proxy appointment, or
proxy appointment revocation and give it effect as the act of the
shareholder.
2.12.2 If the name signed on a vote, consent, waiver,
proxy appointment, or proxy appointment revocation does not correspond
to the name of a shareholder, the corporation, if acting in good faith,
is nevertheless entitled to accept the vote, consent, waiver, proxy
appointment, or proxy appointment revocation and give it effect as the
act of the shareholder if:
(a) the shareholder is an entity as defined in the
Statutes and the name signed purports to be that of an officer or
agent of the entity;
(b) the name signed purports to be that of an
administrator, executor, guardian, or conservator representing
the shareholder and, if the corporation requests, evidence of
fiduciary status acceptable to the corporation has been presented
with respect to the vote, consent, wavier, proxy appointment or
proxy appointment revocation;
(c) the name signed purports to be that of a
receiver or trustee in bankruptcy of the shareholder and, if the
corporation requests, evidence of this status acceptable to the
corporation has been presented with respect to the vote, consent,
waiver, proxy appointment, or proxy appointment revocation; or
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(d) the name signed purports to be that of a
pledgee, beneficial owner, or attorney-in-fact of the shareholder
and, if the corporation requests, evidence acceptable to the
corporation of the signatory's authority to sign for the
shareholder has been presented with respect to the vote, consent,
waiver, proxy appointment or proxy appointment revocation; or
(e) two or more persons are the shareholder as
co-tenants or fiduciaries and the name signed purports to be the
name of at least one of the co-owners and the person signing
appears to be acting on behalf of all co-tenants or fiduciaries.
2.12.3 If shares are registered in the names of two or
more persons, whether fiduciaries, members of a partnership, co-tenants,
husband and wife as community property, voting trustees, persons
entitled to vote under a shareholder voting agreement or otherwise, or
if two or more persons (including proxy holders) have the same fiduciary
relationship respecting the same shares, unless the secretary of the
corporation or other officer or agent entitled to tabulate votes is
given written notice to the contrary and is furnished with a copy of the
instrument or order appointing them or creating the relationship wherein
it is so provided, their acts with respect to voting shall have the
following effect:
(a) if only one votes, such act binds all;
(b) if more than one votes, the act of the majority
so voting bind all;
(c) if more than one votes, but the vote is evenly
split on any particular matter, each fraction may vote the
securities in question proportionately.
If the instrument so filed or the registration of the
shares shows that any tenancy is held in unequal interests, a majority
or even split for the purpose of this Section shall be a majority or
even split in interest.
2.12.4 The corporation is entitled to reject a vote,
consent, waiver, proxy appointment or proxy appointment revocation if
the secretary or other officer or agent authorized to tabulate votes,
acting in good faith, has reasonable basis for doubt about the validity
of the signature on it or about the signatory's authority to sign for
the shareholder.
2.12.5 The corporation and its officer or agent who
accepts or rejects a vote, consent, waiver, proxy appointment or proxy
appointment revocation in good faith and in accordance with the
standards of this Section are not liable in damages to the shareholder
for the consequences of the acceptance or rejection.
2.12.6 Corporate action based on the acceptance or
rejection of a vote, consent, waiver, proxy appointment or proxy
appointment revocation under this Section is valid unless a court of
competent jurisdiction determines otherwise.
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2.13 Action by Shareholders Without a Meeting.
2.13.1 Written Consent. Any action required or permitted
to be taken at a meeting of the shareholders may be taken without a
meeting and without prior notice if one or more consents in writing,
setting forth the action so taken, shall be signed by the holders of
outstanding shares having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at
which all shareholders entitled to vote with respect to the subject
matter thereof were present and voted. Action taken under this Section
has the same effect as action taken at a duly called and convened
meeting of shareholders and may be described as such in any document.
2.13.2 Post-Consent Notice. Unless the written consents of
all shareholders entitled to vote have been obtained, notice of any
shareholder approval without a meeting shall be given at least ten days
before the consummation of the action authorized by such approval to (i)
those shareholders entitled to vote who did not consent in writing, and
(ii) those shareholders not entitled to vote. Any such notice must be
accompanied by the same material that is required under the Statutes to
be sent in a notice of meeting at which the proposed action would have
been submitted to the shareholders for action.
2.13.3 Effective Date and Revocation of Consents. No
action taken pursuant to this Section shall be effective unless all
written consents necessary to support the action are received by the
corporation within a sixty-day period and not revoked. Such action is
effective as of the date the last written consent is received necessary
to effect the action, unless all of the written consents specify an
earlier or later date of the action. Any shareholder giving a written
consent pursuant to this Section may revoke the consent by a signed
writing describing the action and stating that the consent is revoked,
provided that the writing is received by the corporation prior to the
effective date of the action.
2.13.4 Unanimous Consent for Election of Directors.
Notwithstanding subsection (a), directors may not be elected by written
consent unless such consent is unanimous by all shares entitled to vote
for the election of directors.
2.14 Voting for Directors. Unless otherwise provided in the
Articles of Incorporation, every shareholder entitled to vote for the election
of directors has the right to cast, in person or by proxy, all of the votes to
which the shareholder's shares are entitled for as many persons as there are
directors to be elected and for whom election such shareholder has the right to
vote. Directors are elected by a plurality of the votes cast by the shares
entitled to vote in the election at a meeting at which a quorum is present.
ARTICLE 3. BOARD OF DIRECTORS
3.1 General Powers. Unless the Articles of Incorporation have
dispensed with or limited the authority of the board of directors by describing
who will perform some or all of the duties of a board of directors, all
corporate powers shall be exercised by or under the authority, and the business
and affairs of the corporation shall be managed under the direction, of the
board of directors.
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3.2 Number. Tenure and Qualification of Directors. The authorized
number of directors shall be five (5); provided, however, that if the
corporation has less than two (2) shareholders entitled to vote for the election
of directors, the board of directors may consist of a number of individuals
equal to or greater than the number of those shareholders. The current number of
directors shall be within the limit specified above, as determined (or as
amended from time to time) by a resolution adopted by either the shareholders or
the directors. Each director shall hold office until the next annual meeting of
shareholders or until the director's earlier death, resignation, or removal.
However, if his term expires, he shall continue to serve until his successor
shall have been elected and qualified, or until there is a decrease in the
number of directors. Directors do not need to be residents of Nevada or
shareholders of the corporation.
3.3 Regular Meetings of the Board of Directors. A regular meeting
of the board of directors shall be held without other notice than this Bylaw
immediately after, and at the same place as, the annual meeting of shareholders,
for the purpose of appointing officers and transacting such other business as
may come before the meeting. The board of directors may provide, by resolution,
the time and place for the holding of additional regular meetings without other
notice than such resolution.
3.4 Special Meetings of the Board of Directors. Special meetings
of the board of directors may be called by or at the request of the president or
any director. The person authorized to call special meetings of the board of
directors may fix any place as the place for holding any special meeting of the
board of directors.
3.5 Notice of, and Waiver of Notice for, Special Director
Meeting. Unless the Articles of Incorporation provide for a longer or shorter
period, notice of the date, time, and place of any special director meeting
shall be given at least two days before the meeting either orally or in writing.
Any director may waive notice of any meeting. Except as provided in the next
sentence, the waiver must be in writing and signed by the director entitled to
the notice. The attendance of a director at a meeting shall constitute a waiver
of notice of the meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business and at the
beginning of the meeting (or promptly upon his arrival) objects to holding the
meeting or transacting business at the meeting, and does not thereafter vote for
or assent to action taken at the meeting. Unless required by the Articles of
Incorporation, neither the business to be transacted at, nor the purpose of, any
special meeting of the board of directors need be specified in the notice or
waiver of notice of the meeting.
3.6 Director Quorum and Voting.
3.6.1 Quorum. A majority of the number of directors
prescribed by resolution shall constitute a quorum for the transaction
of business at any meeting of the board of directors unless the Articles
of Incorporation require a greater percentage.
Unless the Articles of Incorporation provide otherwise,
any or all directors may participate in a regular or special meeting by,
or conduct the meeting through the use of, any means of communication by
which all directors participating may simultaneously hear each other
during the meeting. A director participating in a meeting by this means
is deemed to be present in person at the meeting.
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A director who is present at a meeting of the board of
directors or a committee of the board of directors when corporate action
is taken is deemed to have assented to the action taken unless: (1) the
director objects at the beginning of the meeting (or promptly upon his
arrival) to holding or transacting business at the meeting and does not
thereafter vote for or assent to any action taken at the meeting; and
(2) the director contemporaneously requests his dissent or abstention as
to any specific action be entered in the minutes of the meeting; or (3)
the director causes written notice of his dissent or abstention as to
any specific action be received by the presiding officer of the meeting
before its adjournment or to the corporation immediately after
adjournment of the meeting. The right of dissent or abstention is not
available to a director who votes in favor of the action taken.
3.7 Director Action Without a Meeting. Any action required or
permitted to be taken by the board of directors at a meeting may be taken
without a meeting if all the directors consent to such action in writing. Action
taken by consent is effective when the last director signs the consent, unless,
prior to that time, any director has revoked a consent by a signed writing
received by the corporation, or unless the consent specifies a different
effective date. A signed consent has the effect of a meeting vote and may be
described as such in any document.
3.8 Resignation of Directors. A director may resign at any time
by giving a written notice of resignation to the corporation. The resignation is
effective when the notice is received by the corporation, unless the notice
specifies a later effective date.
3.9 Removal of Directors. The shareholders may remove one or more
directors at a meeting called for that purpose if notice has been given that a
purpose of the meeting is such removal. The removal may be with or without cause
unless the Articles of Incorporation provide that directors may only be removed
with cause. If a director is elected by a voting group of shareholders, only the
shareholders of that voting group may participate in the vote to remove him. A
director may be removed only if the number of votes cast to remove him exceeds
the number of votes cast not to remove him.
3.10 Board of Directors Vacancies. Unless the Articles of
Incorporation provide otherwise, if a vacancy occurs on the board of directors,
including a vacancy resulting from an increase in the number of directors, the
shareholders may fill the vacancy. During the time that the shareholders fail or
are unable to fill such vacancies, then and until the shareholders act:
(a) the board of directors may fill the vacancy; or
(b) if the directors remaining in office constitute fewer
than a quorum of the board, they may fill the vacancy by the affirmative
vote of a majority of all the directors remaining in office.
If the vacant office was held by a director elected by a voting
group of shareholders:
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(a) if there are one or more directors elected by the same
voting group, only those directors are entitled to vote to fill the
vacancy if it is filled by the directors; and
(b) only the holders of shares of that voting group are
entitled to vote to fill the vacancy if it is filled by the
shareholders.
A vacancy that will occur at a specific later date (by reason of
a resignation effective at a later date) may be filled before the vacancy occurs
but the new director may not take office until the vacancy occurs.
3.11 Director Compensation. By resolution of the board of
directors, each director may be paid his expenses, if any, of attendance at each
meeting of the board of directors and may be paid a stated salary as director or
a fixed sum for attendance at each meeting of the board of directors or both. No
such payment shall preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
3.12 Director Committees.
3.12.1 Creation of Committees. Unless the Articles of
Incorporation provide otherwise, the board of directors may create one
or more committees and appoint members of the board of directors to
serve on them. Each committee must have one or more members, who shall
serve at the pleasure of the board of directors.
3.12.2 Selection of Members. The creation of a committee
and appointment of members to it must be approved by the greater of (1)
a majority of all the directors in office when the action is taken or
(2) the number of directors required by the Articles of Incorporation to
take such action.
3.12.3 Required Procedures. Those Sections of this Article
3 which govern meetings, actions without meetings, notice and waiver of
notice, quorum and voting requirements of the board of directors, apply
to committees and their members.
3.12.4 Authority. Unless limited by the Articles of
Incorporation, each committee may exercise those aspects of the
authority of the board of directors which the board of directors confers
upon such committee in the resolution creating the committee. Provided,
however, a committee may not:
(a) authorize distributions;
(b) approve or propose to shareholders action that
the Statutes require be approved by shareholders;
(c) fill vacancies on the board of directors
or on any of its committees;
(d) amend the Articles of Incorporation pursuant to
the authority of directors to do so;
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(e) adopt, amend or repeal bylaws;
(f) approve a plan of merger not requiring
shareholder approval;
(g) authorize or approve reacquisition of shares,
except according to a formula or method prescribed by the board
of directors; or
(h) authorize or approve the issuance or sale or
contract for sale of shares or determine the designation and
relative rights, preferences, and limitations of a class or
series of shares, except that the board of directors may
authorize a committee (or an officer) to do so within limits
specifically prescribed by the board of directors.
ARTICLE 4. OFFICERS
4.1 Number of Officers. The officers of the corporation shall be
a president, a secretary and a treasurer, each of whom shall be appointed by the
board of directors. Such other officers and assistant officers as may be deemed
necessary, including any vice presidents, may also be appointed by the board of
directors. If specifically authorized by the board of directors, an officer may
appoint one or more officers or assistant officers. The same individual may
simultaneously hold more than one office in the corporation.
4.2 Appointment and Term of Office. The officers of the
corporation shall be appointed by the board of directors for a term as
determined by the board of directors. If no term is specified, they shall hold
office until the first meeting of the directors held after the next annual
meeting of shareholders. If the appointment of officers shall not be made at
such meeting, such appointment shall be made as soon thereafter as is
convenient. Each officer shall hold office until his successor shall have been
duly appointed and shall have qualified until his death, or until he shall
resign or is removed.
The designation of a specified term does not grant to the officer
any contract rights, and the board may remove the officer at any time prior to
the termination of such term.
4.3 Removal of Officers. Any officer or agent may be removed by
the board of directors at any time, with or without cause. Such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Appointment of an officer or agent shall not of itself create contract rights.
4.4 Resignation of Officers. Any officer may resign at any time,
subject to any rights or obligations under any existing contracts between the
officers and the corporation, by giving notice to the president or board of
directors. An officer's resignation shall take effect at the time specified
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therein, and the acceptance of such resignation shall not be necessary to make
it effective.
4.5 President. Unless the board of directors has designated the
chairman of the board as chief executive officer, the president shall be the
chief executive officer of the corporation and, subject to the control of the
board of directors, shall in general supervise and control all of the business
and affairs of the corporation. Unless there is a chairman of the board, the
president shall, when present, preside at all meetings of the shareholders and
of the board of directors. The president may sign, with the secretary or any
other proper officer of the corporation thereunder authorized by the board of
directors, certificates for shares of the corporation and deeds, mortgages,
bonds, contracts, or other instruments which the board of directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the board of directors or by these
Bylaws to some other officer or agent of the corporation, or shall be required
by law to be otherwise signed or executed; and in general shall perform all
duties incident to the office of president and such other duties as may be
prescribed by the board of directors from time to time.
4.6 Vice Presidents. If appointed, in the absence of the
president or in the event of his death, inability or refusal to act, the vice
president (or in the event there be more than one vice president, the vice
presidents in the order designate at the time of their election, or in the
absence of any designation, then in the order of their appointment) shall
perform the duties of the president, and when so acting, shall have all the
powers of, and be subject to, all the restrictions upon the president.
4.7 Secretary. The secretary shall: (a) keep the minutes of the
proceedings of the shareholders, the board of directors, and any committees of
the board in one or more books provided for that purpose; (b) see that all
notices are duly given in accordance with the provisions of these Bylaws or as
required by law; (c) be custodian of the corporate records; (d) when requested
or required, authenticate any records of the corporation; (e) keep a register of
the post office address of each shareholder which shall be furnished to the
secretary by such shareholder; (f) sign with the president, or a vice president,
certificates for shares of the corporation, the issuance of which shall have
been authorized by resolution of the board of directors; (g) have general charge
of the stock transfer books of the corporation; and (h) in general perform all
duties incident to the office of secretary and such other duties as from time to
time may be assigned by the president or by the board of directors. Assistant
secretaries, if any, shall have the same duties and powers, subject to the
supervision of the secretary.
4.8 Treasurer. The treasurer shall: (a) have charge and custody
of and be responsible for all funds and securities of the corporation; (b)
receive and give receipts for monies due and payable to the corporation from any
source whatsoever, and deposit all such moneys in the name of the corporation in
such bank, trust companies, or other depositaries as shall be selected by the
board of directors; and (c) in general perform all of the duties incident to the
office of treasurer and such other duties as from time to time may be assigned
by the president or by the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his or
her duties in such sum and with such surety or sureties as the board of
directors shall determine. Assistant Treasurers, if any, shall have the same
powers and duties, subject to the supervision of the treasurer.
4.9 Salaries. The salaries of the officers shall be fixed from
time to time by the board of directors.
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ARTICLE 5. INDEMNIFICATION OF DIRECTORS,
OFFICERS, AGENTS, AND EMPLOYEES
5.1 Indemnification of Directors. Unless otherwise provided in
the Articles of Incorporation, the corporation shall indemnify any individual
made a party to a proceeding because the individual is or was a director of the
corporation, against liability incurred in the proceeding, but only if such
indemnification is both (i) determined permissible and (ii) authorized, as such
are defined in subsection (a) of this Section 5.1.
5.1.1 Determination of Authorization. The corporation
shall not indemnify a director under this Section unless:
(a) a determination has been made in accordance
with the procedures set forth in the Statutes that the director
met the standard of conduct set forth in subsection (b) below,
and
(b) payment has been authorized in accordance with
the procedures set forth in the Statutes based on a conclusion
that the expenses are reasonable, the corporation has the
financial ability to make the payment, and the financial
resources of the corporation should be devoted to this use rather
than some other use by the corporation.
5.1.2 Standard of Conduct. The individual shall
demonstrate that:
(a) he or she conducted himself in good faith; and
(b) he or she reasonably believed:
(i) in the case of conduct in his or her
official capacity with the corporation, that his or her
conduct was in its best interests;
(ii) in all other cases, that his or her
conduct was at least not opposed to its best interests;
and
(iii) in the case of any criminal
proceeding, he or she had no reasonable cause to believe
his or her conduct was unlawful.
5.1.3 Indemnification in Derivative Actions Limited.
Indemnification permitted under this Section in connection with a
proceeding by or in the right of the corporation is limited to
reasonable expenses incurred in connection with the proceeding.
5.1.4 Limitation on Indemnification. The corporation shall
not indemnify a director under this Section of Article 5:
(a) in connection with a proceeding by or in the
right of the corporation in which the director was adjudged
liable to the corporation; or
(b) in connection with any other proceeding
charging improper personal benefit to the director, whether or
not involving action in his or her official capacity, in which he
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or she was adjudged liable on the basis that personal benefit was
improperly received by the director.
5.2 Advance of Expenses for Directors. If a determination is made
following the procedures of the Statutes, that the director has met the
following requirements, and if an authorization of payment is made following the
procedures and standards set forth in the Statutes, then unless otherwise
provided in the Articles of Incorporation, the corporation shall pay for or
reimburse the reasonable expenses incurred by a director who is a party to a
proceeding in advance of final disposition of the proceeding, if:
(a) the director furnishes the corporation a written
affirmation of his or her good faith belief that he or she has met the
standard of conduct described in this section;
(b) the director furnishes the corporation a written
undertaking, executed personally or on his or her behalf, to repay the
advance if it is ultimately determined that he or she did not meet the
standard of conduct;
(c) a determination is made that the facts then known to
those making the determination would not preclude indemnification under
this Section or the Statutes.
5.3 Indemnification of Officers, Agents and Employees Who Are Not
Directors. Unless otherwise provided in the Articles of Incorporation, the board
of directors may indemnify and advance expenses to any officer, employee, or
agent of the corporation, who is not a director of the corporation, to the same
extent as to a director, or to any greater extent consistent with public policy,
as determined by the general or specific actions of the board of directors.
5.4 Insurance. By action of the board of directors,
notwithstanding any interest of the directors in such action, the corporation
may purchase and maintain insurance on behalf of a person who is or was a
director, officer, employee, fiduciary or agent of the corporation, against any
liability asserted against or incurred by such person in that capacity or
arising from such person's status as a director, officer, employee, fiduciary,
or agent, whether or not the corporation would have the power to indemnify such
person under the applicable provisions of the Statutes.
ARTICLE 6. STOCK
6.1 Issuance of Shares. The issuance or sale by the corporation
of any shares of its authorized capital stock of any class, including treasury
shares, shall be made only upon authorization by the board of directors, unless
otherwise provided by statute. The board of directors may authorize the issuance
of shares for consideration consisting of any tangible or intangible property or
benefit to the corporation, including cash, promissory notes, services
performed, contracts or arrangements for services to be performed, or other
securities of the corporation.
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6.2 Articless for Shares.
6.2.1 Content. Certificates representing shares of the
corporation shall at minimum, state on their face the name of the
corporation and that it is formed under the laws of the State of Nevada;
the name of the person to whom issued; and the number and class of
shares and the designation of the series, if any, the certificate
represents; and be in such form as determined by the board of directors.
The certificates shall be signed (either manually or by facsimile) by
the president or a vice president and by the secretary or an assistant
secretary and may be sealed with a corporate seal or a facsimile
thereof. Each certificate for shares shall be consecutively numbered or
otherwise identified.
6.2.2 Legend as to Class or Series. If the corporation is
authorized to issue different classes of shares or different series
within a class, the designations, relative rights, preferences and
limitations applicable to each class and the variations in rights,
preferences and limitations determined for each series (and the
authority of the board of directors to determine variations for future
series) must be summarized on the front or back of each certificate.
Alternatively, each certificate may state conspicuously on its front or
back that the corporation will furnish the shareholder this information
on request in writing and without charge.
6.2.3 Shareholder List. The name and address of the person
to whom the shares represented thereby are issued, with the number of
shares and date of issue, shall be entered on the stock transfer books
of the corporation.
6.2.4 Transferring Shares. All certificates surrendered to
the corporation for transfer shall be canceled and no new certificates
shall be issued until the former certificates for a like number of
shares shall have been surrendered and canceled, except that in case of
a lost, destroyed, or mutilated certificates, a new one may be issued
therefor upon such terms and indemnity to the corporation as the board
of directors may prescribe.
6.2.5 Lost Certificates. The board of directors may direct
a new certificate or certificates or uncertificated shares to be issued
in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming the
certificates of stock to be lost, stolen or destroyed. When authorizing
the issue of a new certificate or certificates or uncertificated shares,
the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of the lost, stolen
or destroyed certificate or certificates, or his legal representative,
to advertise the same in such manner as it shall require and/or to give
the corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the corporation with respect to the
certificates alleged to have been lost, stolen or destroyed.
6.3 Shares Without Certificates
6.3.1 Issuing Shares Without Certificates. Unless the
Articles of Incorporation provide otherwise, the board of directors may
authorize the issue of some or all the shares of any or all of its
classes or series without certificates. The authorization does not
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affect shares already represented by certificates until they are
surrendered to the corporation.
6.3.2 Information Statement Required. Within a reasonable
time after the issue or transfer of shares without certificates, the
corporation shall send the shareholder a written statement containing,
at a minimum, the information required by the Statutes.
6.4 Registration of the Transfer of Shares. Registration of the
transfer of shares of the corporation shall be made only on the stock transfer
books of the corporation. In order to register a transfer, the record owner
shall surrender the shares to the corporation for cancellation, properly
endorsed by the appropriate person or persons with reasonable assurances that
the endorsements are genuine and effective. Unless the corporation has
established a procedure by which a beneficial owner of shares held by a nominee
is to be recognized by the corporation as the owner, the person in whose name
shares stand in the books of the corporation shall be deemed by the corporation
to be the owner thereof for all purposes.
6.5 Restrictions on Transfer or Registration of Shares. The board
of directors or shareholders may impose restrictions on the transfer or
registration of transfer of shares (including any security convertible into, or
carrying a right to subscribe for or acquire shares). A restriction does not
affect shares issued before the restriction was adopted unless the holders of
the shares are parties to the restriction agreement or voted in favor of or
otherwise consented to the restriction.
A restriction on the transfer or registration of transfer of
shares may be authorized:
(a) to maintain the corporation's status when it is
dependent on the number or identity of its shareholders;
(b) to preserve entitlements, benefits or exemptions under
federal or local laws; and
(c) for any other reasonable purposes.
A restriction on the transfer or registration of transfer of
shares may:
(a) obligate the shareholder first to offer the
corporation or other persons (separately, consecutively or
simultaneously) an opportunity to acquire the restricted shares;
(b) obligate the corporation or other persons (separately,
consecutively or simultaneously) to acquire the restricted shares;
(c) require as a condition to such transfer or
registration, that any one or more persons, including the holders of any
of its shares, approve the transfer or registration if the requirement
is not manifestly unreasonable; or
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(d) prohibit the transfer or the registration of transfer
of the restricted shares to designated persons or classes of persons, if
the prohibition is not manifestly unreasonable.
A restriction on the transfer or registration of transfer of
shares is valid and enforceable against the holder or a transferee of the holder
if the restriction is authorized by this Section and its existence is noted
conspicuously on the front or back of the certificates or is contained in the
information statement required by this Article 6 with regard to shares issued
without certificates. Unless so noted, a restriction is not enforceable against
a person without knowledge of the restriction.
6.6 Corporation's Acquisition of Shares. The corporation may
acquire its own shares and the shares so acquired constitute authorized but
unissued shares.
If the Articles of Incorporation prohibit the reissue of acquired
shares, the number of authorized shares is reduced by the number of shares
acquired, effective upon amendment of the Articles of Incorporation, which
amendment may be adopted by the shareholders or the board of directors without
shareholder action. The articles of amendment must be delivered to the Secretary
of State and must set forth:
(a) the name of the corporation;
(b) the reduction in the number of authorized shares,
itemized by class and series;
(c) the total number of authorized shares, itemized by
class and series, remaining after reduction of the shares; and
(d) a statement that the amendment was adopted by the
board of directors without shareholder action and that shareholder
action was not required.
ARTICLE 7. DISTRIBUTIONS
7.1 Distributions to Shareholders. The board of directors may
authorize, and the corporation may make, distributions to the shareholders of
the corporation subject to any restrictions in the corporation's Articles of
Incorporation and in the Statutes.
7.2 Unclaimed Distributions. If the corporation has mailed three
successive distributions to a shareholder at the shareholder's address as shown
on the corporation's current record of shareholders and the distributions have
been returned as undeliverable, no further attempt to deliver distributions to
the shareholder need be made until another address for the shareholder is made
known to the corporation, at which time all distributions accumulated by reason
of this Section, except as otherwise provided by law, shall be mailed to the
shareholder at such other address.
ARTICLE 8. NASDAQ COMPLIANCE
8.1 In General. Notwithstanding anything to the contrary in these
Bylaws, the provisions of this Article 8 shall be applicable (a) so long as the
corporation's securities are listed on the NASDAQ SmallCap Market, or the NASDAQ
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National Market, or the OTC Bulletin Board, or (b) so long as the corporation's
securities are registered under the Securities Exchange Act of 1934; provided,
however, if the corporation's securities are not listed on a NASDAQ market or
the OTC Bulletin Board, notices and filings otherwise required to be given or
made to NASDAQ need not be given or made to NASDAQ.
8.2 Distribution of Annual and Interim Reports.
(a) The corporation shall distribute to its shareholders
copies of an annual report containing audited financial statements of
the corporation and its subsidiaries. The report shall be distributed to
the shareholders a reasonable period of time prior to the corporation's
annual meeting of shareholders and shall be filed with NASDAQ at the
time it is distributed to the shareholders.
(b) The corporation shall make available copies of
quarterly reports including statements of operating results to its
shareholders either prior to or as soon as practicable following the
corporation's filing of its Form 10-Q with the SEC. If the form of such
quarterly report differs from the Form 10-Q the corporation shall file
one copy of the report with NASDAQ in addition to filing its Form 10-Q
pursuant to NASDAQ Rule 4310(c)(14). The statement of operations
contained in quarterly reports shall disclose, as a minimum, any
substantial items of an unusual or nonrecurrent nature and net income
before and after estimated federal income taxes or net income and the
amount of estimated federal taxes.
8.3 Independent Directors. The corporation shall maintain a
minimum of two independent directors on its board of directors.
8.4 Audit Committee. The corporation shall establish and maintain
an Audit Committee, a majority of the members of which shall be independent
directors.
8.5 Shareholder Meetings. The corporation shall hold an annual
meeting of shareholders and shall provide notice of such meeting to NASDAQ.
8.6 Quorum. The corporation shall provide for a quorum as
specified in its Bylaws for any meeting of the holders of common stock;
provided, however, that in no case shall the quorum be less than thirty-three
and one-third percent (33-1/3) of the outstanding shares of the corporation's
common stock.
8.7 Solicitation of Proxies. The corporation shall solicit
proxies and provide proxy statements for all meetings of its shareholders and
shall provide copies of such proxy solicitation to NASDAQ.
8.8 Conflicts of Interest. The corporation shall conduct an
appropriate review of all related party transactions on an ongoing basis and
shall utilize the corporation's Audit Committee or a comparable body of the
Board of Directors for the review of potential conflict of interest situations
where appropriate.
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8.9 Shareholder Approval.
(i) The corporation shall require shareholder approval of
a plan or arrangement under subparagraph a. below, or prior to the
issuance of designated securities under subparagraph b., c., or d.
below:
a. when a stock option or purchase plan is to be
established or other arrangement made pursuant to which stock may
be acquired by officers or directors, except for warrants or
rights issued generally to security holders of the corporation or
broadly based plans or arrangements including other employees
(e.g. ESOPs). In a case where the shares are issued to a person
not previously employed by the corporation, as an inducement
essential to the individual's entering into an employment
contract with the corporation, shareholder approval will
generally not be required. The establishment of a plan or
arrangement under which the amount of securities which may be
issued does not exceed the lesser of one percent (1%) of the
number of shares of common stock, one percent (1%) of the voting
power outstanding, or twenty-five thousand (25,000) shares will
not generally require shareholder approval;
b. when the issuance will result in a change of
control of the corporation;
c. in connection with the acquisition of the
stock or assets of another company if;
1. any director, officer or substantial
shareholder of the corporation has a five percent (5%) or greater
interest (or such persons collectively have a ten percent (10%) or
greater interest), director or indirectly, in the corporation or assets
to be acquired or in the consideration to be paid in the transaction
or series of related transactions and the present or potential issuance
of common stock, or securities convertible into or exercisable for
common stock, could result in an increase in outstanding common shares
or voting power of five percent (5%) or more; or
2. where, due to the present or potential issuance
of common stock, or securities convertible into or exercisable for
common stock, other than a public offering for cash:
A. the common stock has or will have upon
issuance voting power equal to or in excess of twenty percent (20%) of
the voting power outstanding before the issuance of stock or securities
convertible into or exercisable for common stock; or
B. the number of shares of common stock to
be issued is or will be equal to or in excess of twenty percent (20%)
of the number of shares or common stock outstanding before the issuance
of the stock or securities; or
d. in connection with a transaction other than a
public offering involving:
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1. the sale or issuance by the corporation of
common stock (or securities convertible into or exercisable for common
stock) at a price less than the greater of book or market value which
together with sales by officers, directors or substantial
shareholders of the corporation equals twenty percent (20%) or more
of common stock or twenty percent (20%) or more of the voting power
outstanding before the issuance; or
2. the sale or issuance by the corporation of
common stock (or securities convertible into or exercisable for common
stock) equal to twenty percent (20%) or more of the common stock or
twenty percent (20%) or more of the voting power outstanding before
the issuance for less than the greater of book or market value of the
stock.
(ii) Exceptions may be made upon application to NASDAQ when:
a. the delay in securing shareholder approval would
seriously jeopardize the financial viability of the enterprise; and
b. reliance by the corporation on this exception is
expressly approved by the Audit Committee or a comparable body of the
Board of Directors.
A company relying on this exception must mail to all shareholders not
later than ten days before issuance of the securities a letter alerting
them to its omission to seek the shareholder approval that would
otherwise be required and indicating that the Audit Committee or a
comparable body of the Board of Directors has expressly approved the
exception.
(iii) Only shares actually issued and outstanding (excluding
treasury shares or shares held by a subsidiary) are to be used in making
any calculation provided for in this Section 8.9. Unissued shares
reserved for issuance upon conversion of securities or upon exercise of
options or warrants will not be regarded as outstanding.
(iv) Voting power outstanding as used in this Section 8.9 refers
to the aggregate number of votes which may be cast by holders of those
securities outstanding which entitle the holders thereof to vote
generally on all matters submitted to the corporation's security holders
for a vote.
(v) An interest consisting of less than either five percent (5%)
of the number of shares of commons tock or five percent (5%) of the
voting power outstanding of an issuer or party shall not be considered a
substantial interest or cause the holder of such an interest to be
regarded as a substantial security holder.
(vi) Where shareholder approval is required, the minimum vote
which will constitute shareholder approval shall be a majority of the
total votes cast on the proposal in person or by proxy.
8.10 Voting Rights. Voting rights of existing shareholders of
publicly traded common stock registered under Section 12 of the Securities
Exchange Act of 1934 cannot be disparately reduced or restricted through any
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corporate action or issuance. Examples of such corporate action or issuance
include, but are not limited to, the adoption of time-phased voting plans, the
adoption of capped voting rights plans, the issuance of super-voting stock, or
the issuance of stock with voting rights less than the per share voting rights
of the existing common stock through an exchange offer.
ARTICLE 9. MISCELLANEOUS
9.1 Inspection of Records by Shareholders and Directors. A
shareholder or director of the corporation is entitled to inspect and copy,
during regular business hours at the corporation's principal office, any of the
records of the corporation required to be maintained by the corporation under
the Statutes, if such person gives the corporation written notice of the demand
at least five business days before the date on which such a person wishes to
inspect and copy. The scope of the inspection right shall be as provided under
the Statutes.
9.2 Corporate Seal. The board of directors may provide a
corporate seal which may be circular in form and have inscribed thereon any
designation including the name of the corporation, the state of incorporation,
and the words "Corporate Seal."
9.3 Amendments. The corporation's board of directors may amend or
repeal the corporations' Bylaws at any time unless:
(a) the Articles of Incorporation or the Statutes reserve
this power exclusively to the shareholders in whole or part; or
(b) the shareholders in adopting, amending, or repealing a
particular bylaw provide expressly that the board of directors may not
amend or repeal that bylaw; or
(c) the bylaw either establishes, amends, or deletes, a
greater shareholder quorum or voting requirement.
Any amendment which changes the voting or quorum requirement for
the board must meet the same quorum requirement and be adopted by the same vote
and voting groups required to take action under the quorum and voting
requirements then in effect or proposed to be adopted, whichever is greater.
Dated as of November 1, 1999.
-----------------------------------------
James R. Ladd, Director
-----------------------------------------
David A. Nuttle, Director
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AMENDED BYLAWS
OF
NEXTPATH TECHNOLOGIES, INC.
ARTICLE 1. OFFICES
1.1 Business Office. The principal office of the corporation
shall be located at any place either within or outside the State of Nevada as
designated in the corporation's most recent document on file with the Nevada
Secretary of State, Division of Corporations. The corporation may have such
other offices, either within or without the State of Nevada, as the board of
directors may designate or as the business of the corporation may require from
time to time.
1.2 Registered Office. The registered office of the corporation
shall be located within the State of Nevada and may be, but need not be,
identical with the principal office. The address of the registered office may be
changed from time to time.
ARTICLE 2. SHAREHOLDERS
2.1 Annual Shareholder Meeting. The annual meeting of the
shareholders shall be held on the 8th day of May in each year, beginning with
the year 1997, at the hour of 2:00 p.m., or at such other time on such other day
within such month as shall be fixed by the board of directors, for the purpose
of electing directors and for the transaction of such other business as may come
before the meeting. If the day fixed for the annual meeting shall be a legal
holiday in the State of Nevada, such meeting shall be held on the next
succeeding business day.
2.2 Special Shareholder Meeting. Special meetings of the
shareholders, for any purpose or purposes described in the meeting notice, may
be called by the president, or by the board of directors, and shall be called by
the president at the request of the holders of not less than one-fourth of all
outstanding votes of the corporation entitled to be cast on any issue at the
meeting.
2.3 Place of Shareholder Meeting. The board of directors may
designate any place, either within or without the State of Nevada, as the place
of meeting for any annual or any special meeting of the shareholders, unless by
written consent, which may be in the form of waivers of notice or otherwise, all
shareholders entitled to vote at the meeting designate a different place, either
within or without the State of Nevada, as the place for the holding of such
meeting. If no designation is made by either the directors or unanimous action
of the voting shareholders, the place of meeting shall be at 215 South State
Street, #1100, Salt Lake City, Utah 84111.
2.4 Notice of Shareholder Meeting. Written notice sating the
date, time, and place of any annual or special shareholder meeting 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 President, the board
of directors, or other persons calling the meeting, to each shareholder of
record entitled to vote at such meeting and to any other shareholder entitled by
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the Nevada Revised Statutes (the "Statutes") or the articles of incorporation to
receive notice of the meeting. Notice shall be deemed to be effective at the
earlier of: (1) when deposited in the United States mail, addressed to the
shareholder at his address as it appears on the stock transfer books of the
corporation, with postage thereon prepaid; (2) on the date shown on the return
receipt if sent by registered or certified mail, return receipt requested, and
the receipt is signed by or on behalf of the addressee; (3) when received; or
(4) 3 days after deposit in the United States mail, if mailed postpaid and
correctly addressed to an address other than that shown in the corporation's
current record of shareholders.
If any shareholder meeting is adjourned to a different date, time
or place, notice need not be given of the new date, time and place, if the new
date, time and place is announced at the meeting before adjournment. But if the
adjournment is for more than 30 days or if a new record date for the adjourned
meeting is or must be fixed, then notice must be given pursuant to the
requirements of the previous paragraph, to those persons who are shareholders as
of the new record date.
2.5 Waiver of Notice. A shareholder may waive any notice required
by the Statutes, the articles of incorporation, or these bylaws, by a writing
signed by the shareholder entitled to the notice, which is delivered to the
corporation (either before or after the date and time stated in the notice) for
inclusion in the minutes or filing with the corporate records.
A shareholder's attendance at a meeting:
(a) waives objection to lack of notice or defective notice
of the meeting, unless the shareholder at the beginning of the meeting
objects to holding the meeting or transacting business at the meeting
because of lack of notice or effective notice; and
(b) waives objection to consideration of a particular
matter at the meeting that is not within the purpose or purposes
described in the meeting notice, unless the shareholder objects to
considering the matter when it is presented.
2.6 Fixing of Record Date. For the purpose of determining
shareholders of any voting group entitled to notice of or to vote at any meeting
of shareholders, or shareholders entitled to receive payment of any
distribution, or in order to make a determination of shareholders for any other
purpose, the board of directors may fix in advance a date as the record date.
Such record date shall not be more than 70 days prior to the date on which the
particular action, requiring such determination of shareholders, is to be taken.
If no record date is so fixed by the board for the determination of shareholders
entitled to notice of, or to vote at a meeting of shareholders, the record date
for determination of such shareholders shall be at the close of business on the
day the first notice is delivered to shareholders. If no record date is fixed by
the board for the determination of shareholders entitled to receive a
distribution, the record date shall be the date the board authorizes the
distribution. With respect to actions taken in writing without a meeting, the
record date shall be the date the first shareholder signs the consent.
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When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this Section, such
determination shall apply to any adjournment thereof unless the board of
directors fixes a new record date which it must do if the meeting is adjourned
to a date more than 120 days after the date fixed for the original meeting.
2.7 Shareholder List. After fixing a record date for a
shareholder meeting, the corporation shall prepare a list of the names of its
shareholders entitled to be given notice of the meeting. The shareholder list
must be available for inspection by any shareholder, beginning on the earlier of
10 days before the meeting for which the list was prepared or 2 business days
after notice of the meeting is given for which the list was prepared and
continuing through the meeting, and any adjournment thereof. The list shall be
available at the corporation's principal office or at a place identified in the
meeting notice in the city where the meeting is to be held.
2.8 Shareholder Quorum and Voting Requirements.
2.8.1 Quorum. Except as otherwise required by the Statutes
or the articles of incorporation, a majority of the outstanding shares
of the corporation, represented by person or by proxy, shall constitute
a quorum at each meeting of the shareholders. If a quorum exists, action
on a matter, other than the election of directors, is approved if the
votes cast favoring the action exceed the votes cast opposing the
action, unless the articles of incorporation or the Statutes require a
greater number of affirmative votes.
2.8.2 Voting of Shares. Unless otherwise provided in the
articles of incorporation or these bylaws, each outstanding share,
regardless of class, is entitled to one vote upon each matter submitted
to a vote at a meeting of shareholders.
2.9 Quorum and Voting Requirements of Voting Groups. If the
articles of incorporation or the Statutes provide for voting by a single voting
group on a matter, action on that matter is taken when voted upon by that voting
group.
Once a share is represented for any purpose at a meeting, it is
deemed present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for that
adjourned meeting.
Shares entitled to vote as a separate voting group may take
action on a matter at a meeting only if a quorum of those shares exists with
respect to that matter. Unless the articles of incorporation or the Statutes
provide otherwise, a majority of the votes entitled to be cast on the matter by
the voting group constitutes a quorum of that voting group for action on that
matter.
If the articles of incorporation or the Statutes provide for
voting by two or more voting groups on a matter, action on that matter is taken
only when voted upon by each of those voting groups counted separately. Action
may be taken by one voting group on a matter even though no action is taken by
another voting group entitled to vote on the matter.
If a quorum exists, action on a matter, other than the election
of directors, by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the action, unless the
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articles of incorporation or the Statutes require a greater number of
affirmative votes.
2.10 Greater Quorum or Voting Requirements. The articles of
incorporation may provide for a greater quorum or voting requirement for
shareholders, or voting groups of shareholders, than is provided for by these
bylaws. An amendment to the articles of incorporation that adds, changes, or
deletes a greater quorum or voting requirement for shareholders must meet the
same quorum requirement and be adopted by the same vote and voting groups
required to take action under the quorum and voting requirement then in effect
or proposed to be adopted, whichever is greater.
2.11 Proxies. At all meetings of shareholders, a shareholder may
vote in person or by proxy which is executed in writing by the shareholder or
which is executed by his duly authorized attorney-in-fact. Such proxy shall be
filed with the Secretary of the corporation or other person authorized to
tabulate votes before or at the time of the meeting. No proxy shall be valid
after 11 months from the date of its execution unless otherwise provided in the
proxy. All proxies are revocable unless they meet specific requirements of
irrevocability set forth in the Statutes. The death or incapacity of a voter
does not invalidate a proxy unless the corporation is put on notice. A
transferee for value who receives shares subject to an irrevocable proxy, can
revoke the proxy if he had no notice of the proxy.
2.12 Corporation's Acceptance of Votes.
2.12.1 If the name signed on a vote, consent, waiver,
proxy appointment, or proxy appointment revocation corresponds to the
name of a shareholder, the corporation, if acting in good faith, is
entitled to accept the vote, consent, waiver, proxy appointment, or
proxy appointment revocation and give it effect as the act of the
shareholder.
2.12.2 If the name signed on a vote, consent, waiver,
proxy appointment, or proxy appointment revocation does not correspond
to the name of a shareholder, the corporation, if acting in good faith,
is nevertheless entitled to accept the vote, consent, waiver, proxy
appointment, or proxy appointment revocation and give it effect as the
act of the shareholder if:
(a) the shareholder is an entity as defined in the
Statutes and the name signed purports to be that of an officer or
agent of the entity;
(b) the name signed purports to be that of an
administrator, executor, guardian, or conservator representing
the shareholder and, if the corporation requests, evidence of
fiduciary status acceptable to the corporation has been presented
with respect to the vote, consent, wavier, proxy appointment or
proxy appointment revocation;
(c) the name signed purports to be that of a
receiver or trustee in bankruptcy of the shareholder and, if the
corporation requests, evidence of this status acceptable to the
corporation has been presented with respect to the vote, consent,
waiver, proxy appointment, or proxy appointment revocation; or
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(d) the name signed purports to be that of a
pledgee, beneficial owner, or attorney-in-fact of the shareholder
and, if the corporation requests, evidence acceptable to the
corporation of the signatory's authority to sign for the
shareholder has been presented with respect to the vote, consent,
waiver, proxy appointment or proxy appointment revocation; or
(e) two or more persons are the shareholder as
co-tenants or fiduciaries and the name signed purports to be the
name of at least one of the co-owners and the person signing
appears to be acting on behalf of all co-tenants or fiduciaries.
2.12.3 If shares are registered in the names of two or
more persons, whether fiduciaries, members of a partnership, co-tenants,
husband and wife as community property, voting trustees, persons
entitled to vote under a shareholder voting agreement or otherwise, or
if two or more persons (including proxy holders) have the same fiduciary
relationship respecting the same shares, unless the secretary of the
corporation or other officer or agent entitled to tabulate votes is
given written notice to the contrary and is furnished with a copy of the
instrument or order appointing them or creating the relationship wherein
it is so provided, their acts with respect to voting shall have the
following effect:
(a) if only one votes, such act binds all;
(b) if more than one votes, the act of the majority
so voting bind all;
(c) if more than one votes, but the vote is evenly
split on any particular matter, each fraction may vote the
securities in question proportionately.
If the instrument so filed or the registration of the
shares shows that any tenancy is held in unequal interests, a majority
or even split for the purpose of this Section shall be a majority or
even split in interest.
2.12.4 The corporation is entitled to reject a vote,
consent, waiver, proxy appointment or proxy appointment revocation if
the secretary or other officer or agent authorized to tabulate votes,
acting in good faith, has reasonable basis for doubt about the validity
of the signature on it or about the signatory's authority to sign for
the shareholder.
2.12.5 The corporation and its officer or agent who
accepts or rejects a vote, consent, waiver, proxy appointment or proxy
appointment revocation in good faith and in accordance with the
standards of this Section are not liable in damages to the shareholder
for the consequences of the acceptance or rejection.
2.12.6 Corporate action based on the acceptance or
rejection of a vote, consent, waiver, proxy appointment or proxy
appointment revocation under this Section is valid unless a court of
competent jurisdiction determines otherwise.
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2.13 Action by Shareholders Without a Meeting.
2.13.1 Written Consent. Any action required or permitted
to be taken at a meeting of the shareholders may be taken without a
meeting and without prior notice if one or more consents in writing,
setting forth the action so taken, shall be signed by the holders of
outstanding shares having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at
which all shareholders entitled to vote with respect to the subject
matter thereof were present and voted. Action taken under this Section
has the same effect as action taken at a duly called and convened
meeting of shareholders and may be described as such in any document.
2.13.2 Post-Consent Notice. Unless the written consents of
all shareholders entitled to vote have been obtained, notice of any
shareholder approval without a meeting shall be given at least ten days
before the consummation of the action authorized by such approval to (i)
those shareholders entitled to vote who did not consent in writing, and
(ii) those shareholders not entitled to vote. Any such notice must be
accompanied by the same material that is required under the Statutes to
be sent in a notice of meeting at which the proposed action would have
been submitted to the shareholders for action.
2.13.3 Effective Date and Revocation of Consents. No
action taken pursuant to this section shall be effective unless all
written consents necessary to support the action are received by the
corporation within a sixty-day period and not revoked. Such action is
effective as of the date the last written consent is received necessary
to effect the action, unless all of the written consents specify an
earlier or later date of the action. Any shareholder giving a written
consent pursuant to this Section may revoke the consent by a signed
writing describing the action and stating that the consent is revoked,
provided that such writing is received by the corporation prior to the
effective date of the action.
2.13.4 Unanimous Consent for Election of Directors.
Notwithstanding subsection (a), directors may not be elected by written
consent unless such consent is unanimous by all shares entitled to vote
for the election of directors.
2.14 Voting for Directors. Unless otherwise provided in the
articles of incorporation, every shareholder entitled to vote for the election
of directors has the right to cast, in person or by proxy, all of the votes to
which the shareholder's shares are entitled for as many persons as there are
directors to be elected and for whom election such shareholder has the right to
vote. Directors are elected by a plurality of the votes cast by the shares
entitled to vote in the election at a meeting at which a quorum is present.
ARTICLE 3. BOARD OF DIRECTORS
3.1 General Powers. Unless the articles of incorporation have
dispensed with or limited the authority of the board of directors by describing
who will perform some or all of the duties of a board of directors, all
corporate powers shall be exercised by or under the authority, and the business
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and affairs of the corporation shall be managed under the direction, of the
board of directors.
3.2 Number. Tenure and Qualification of Directors. The authorized
number of directors shall be five (5); provided, however, that if the
corporation has less than two shareholders entitled to vote for the election of
directors, the board of directors may consist of a number of individuals equal
to or greater than the number of those shareholders. The current number of
directors shall be within the limit specified above, as determined (or as
amended from time to time) by a resolution adopted by either the shareholders or
the directors. Each director shall hold office until the next annual meeting of
shareholders or until the director's earlier death, resignation, or removal.
However, if his term expires, he shall continue to serve until his successor
shall have been elected and qualified, or until there is a decrease in the
number of directors. Directors do not need to be residents of Nevada or
shareholders of the corporation.
3.3 Regular Meetings of the Board of Directors. A regular meeting
of the board of directors shall be held without other notice than this bylaw
immediately after, and at the same place as, the annual meeting of shareholders,
for the purpose of appointing officers and transacting such other business as
may come before the meeting. The board of directors may provide, by resolution,
the time and place for the holding of additional regular meetings without other
notice than such resolution.
3.4 Special Meetings of the Board of Directors. Special meetings
of the board of directors may be called by or at the request of the president or
any director. The person authorized to call special meetings of the board of
directors may fix any place as the place for holding any special meeting of the
board of directors.
3.5 Notice of, and Waiver of Notice for, Special Director
Meeting. Unless the articles of incorporation provide for a longer or shorter
period, notice of the date, time, and place of any special director meeting
shall be given at least two days previously thereto either orally or in writing.
Any director may waive notice of any meeting. Except as provided in the next
sentence, the waiver must be in writing and signed by the director entitled to
the notice. The attendance of a director at a meeting shall constitute a waiver
of notice of such meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business and at the
beginning of the meeting (or promptly upon his arrival) objects to holding the
meeting or transacting business at the meeting, and does not thereafter vote for
or assent to action taken at the meeting. Unless required by the articles of
incorporation, neither the business to be transacted at, nor the purpose of, any
special meeting of the board of directors need be specified in the notice or
waiver of notice of such meeting.
3.6 Director Quorum and Voting.
3.6.1 Quorum. A majority of the number of directors
prescribed by resolution shall constitute a quorum for the transaction
of business at any meeting of the board of directors unless the articles
of incorporation require a greater percentage.
Unless the articles of incorporation provide otherwise,
any or all directors may participate in a regular or special meeting by,
or conduct the meeting through the use of, any means of communication by
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which all directors participating may simultaneously hear each other
during the meeting. A director participating in a meeting by this means
is deemed to be present in person at the meeting.
A director who is present at a meeting of the board of
directors or a committee of the board of directors when corporate action
is taken is deemed to have assented to the action taken unless: (1) the
director objects at the beginning of the meeting (or promptly upon his
arrival) to holding or transacting business at the meeting and does not
thereafter vote for or assent to any action taken at the meeting; and
(2) the director contemporaneously requests his dissent or abstention as
to any specific action be entered in the minutes of the meeting; or (3)
the director causes written notice of his dissent or abstention as to
any specific action be received by the presiding officer of the meeting
before its adjournment or to the corporation immediately after
adjournment of the meeting. The right of dissent or abstention is not
available to a director who votes in favor of the action taken.
3.7 Director Action Without a Meeting. Any action required or
permitted to be taken by the board of directors at a meeting may be taken
without a meeting if all the directors consent to such action in writing. Action
taken by consent is effective when the last director signs the consent, unless,
prior to such time, any director has revoked a consent by a signed writing
received by the corporation, or unless the consent specifies a different
effective date. A signed consent has the effect of a meeting vote and may be
described as such in any document.
3.8 Resignation of Directors. A director may resign at any time
by giving a written notice of resignation to the corporation. Such resignation
is effective when the notice is received by the corporation, unless the notice
specifies a later effective date.
3.9 Removal of Directors. The shareholders may remove one or more
directors at a meeting called for that purpose if notice has been given that a
purpose of the meeting is such removal. The removal may be with or without cause
unless the articles of incorporation provide that directors may only be removed
with cause. If a director is elected by a voting group of shareholders, only the
shareholders of that voting group may participate in the vote to remove him. A
director may be removed only if the number of votes cast to remove him exceeds
the number of votes cast not to remove him.
3.10 Board of Directors Vacancies. Unless the articles of
incorporation provide otherwise, if a vacancy occurs on the board of directors,
including a vacancy resulting from an increase in the number of directors, the
shareholders may fill the vacancy. During such time that the shareholders fail
or are unable to fill such vacancies then and until the shareholders act:
(a) the board of directors may fill the vacancy; or
(b) if the board of directors remaining in office
constitute fewer than a quorum of the board, they may fill the vacancy
by the affirmative vote of a majority of all the directors remaining in
office.
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If the vacant office was held by a director elected by a voting
group of shareholders:
(a) if there are one or more directors elected by the same
voting group, only such directors are entitled to vote to fill the
vacancy if it is filled by the directors; and
(b) only the holders of shares of that voting group are
entitled to vote to fill the vacancy if it is filled by the
shareholders.
A vacancy that will occur at a specific later date (by reason of
a resignation effective at a later date) may be filled before the vacancy occurs
but the new director may not take office until the vacancy occurs.
3.11 Director Compensation. By resolution of the board of
directors, each director may be paid his expenses, if any, of attendance at each
meeting of the board of directors and may be paid a stated salary as director or
a fixed sum for attendance at each meeting of the board of directors or both. No
such payment shall preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
3.12 Director Committees.
3.12.1 Creation of Committees. Unless the articles of
incorporation provide otherwise, the board of directors may create one
or more committees and appoint members of the board of directors to
serve on them. Each committee must have one or more members, who shall
serve at the pleasure of the board of directors.
3.12.2 Selection of Members. The creation of a committee
and appointment of members to it must be approved by the greater of (1)
a majority of all the directors in office when the action is taken or
(2) the number of directors required by the articles of incorporation to
take such action.
3.12.3 Required Procedures. Those Sections of this Article
3 which govern meetings, actions without meetings, notice and waiver of
notice, quorum and voting requirements of the board of directors, apply
to committees and their members.
3.12.4 Authority. Unless limited by the articles of
incorporation, each committee may exercise those aspects of the
authority of the board of directors which the board of directors confers
upon such committee in the resolution creating the committee. Provided,
however, a committee may not:
(a) authorize distributions;
(b) approve or propose to shareholders action that
the Statutes require be approved by shareholders;
(c) fill vacancies on the board of directors
or on any of its committees;
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(d) amend the articles of incorporation pursuant to
the authority of directors to do so;
(e) adopt, amend or repeal bylaws;
(f) approve a plan of merger not requiring
shareholder approval;
(g) authorize or approve reacquisition of shares,
except according to a formula or method prescribed by the board
of directors; or
(h) authorize or approve the issuance or sale or
contract for sale of shares or determine the designation and
relative rights, preferences, and limitations of a class or
series of shares, except that the board of directors may
authorize a committee (or an officer) to do so within limits
specifically prescribed by the board of directors.
ARTICLE 4. OFFICERS
4.1 Number of Officers. The officers of the corporation shall be
a president, a secretary and a treasurer, each of whom shall be appointed by the
board of directors. Such other officers and assistant officers as may be deemed
necessary, including any vice presidents, may also be appointed by the board of
directors. If specifically authorized by the board of directors, an officer may
appoint one or more officers or assistant officers. The same individual may
simultaneously hold more than one office in the corporation.
4.2 Appointment and Term of Office. The officers of the
corporation shall be appointed by the board of directors for a term as
determined by the board of directors. If no term is specified, they shall hold
office until the first meeting of the directors held after the next annual
meeting of shareholders. If the appointment of officers shall not be made at
such meeting, such appointment shall be made as soon thereafter as is
convenient. Each officer shall hold office until his successor shall have been
duly appointed and shall have qualified until his death, or until he shall
resign or is removed.
The designation of a specified term does not grant to the officer
any contract rights, and the board may remove the officer at any time prior to
the termination of such term.
4.3 Removal of Officers. Any officer or agent may be removed by
the board of directors at any time, with or without cause. Such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Appointment of an officer or agent shall not of itself create contract rights.
4.4 Resignation of Officers. Any officer may resign at any time,
subject to any rights or obligations under any existing contracts between the
officers and the corporation, by giving notice to the president or board of
directors. An officer's resignation shall take effect at the time specified
therein, and the acceptance of such resignation shall not be necessary to make
it effective.
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4.5 President. Unless the board of directors has designated the
chairman of the board as chief executive officer, the president shall be the
chief executive officer of the corporation and, subject to the control of the
board of directors, shall in general supervise and control all of the business
and affairs of the corporation. Unless there is a chairman of the board, the
president shall, when present, preside at all meetings of the shareholders and
of the board of directors. The president may sign, with the secretary or any
other proper officer of the corporation thereunder authorized by the board of
directors, certificates for shares of the corporation and deeds, mortgages,
bonds, contracts, or other instruments which the board of directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the board of directors or by these
bylaws to some other officer or agent of the corporation, or shall be required
by law to be otherwise signed or executed; and in general shall perform all
duties incident to the office of president and such other duties as may be
prescribed by the board of directors from time to time.
4.6 Vice Presidents. If appointed, in the absence of the
president or in the event of his death, inability or refusal to act, the vice
president (or in the event there be more than one vice president, the vice
presidents in the order designate at the time of their election, or in the
absence of any designation, then in the order of their appointment) shall
perform the duties of the president, and when so acting, shall have all the
powers of, and be subject to, all the restrictions upon the president.
4.7 Secretary. The secretary shall: (a) keep the minutes of the
proceedings of the shareholders, the board of directors, and any committees of
the board in one or more books provided for that purpose; (b) see that all
notices are duly given in accordance with the provisions of these bylaws or as
required by law; (c) be custodian of the corporate records; (d) when requested
or required, authenticate any records of the corporation; (e) keep a register of
the post office address of each shareholder which shall be furnished to the
secretary by such shareholder; (f) sign with the president, or a vice president,
certificates for shares of the corporation, the issuance of which shall have
been authorized by resolution of the board of directors; (g) have general charge
of the stock transfer books of the corporation; and (h) in general perform all
duties incident to the office of secretary and such other duties as from time to
time may be assigned by the president or by the board of directors. Assistant
secretaries, if any, shall have the same duties and powers, subject to the
supervision of the secretary.
4.8 Treasurer. The treasurer shall: (a) have charge and custody
of and be responsible for all funds and securities of the corporation; (b)
receive and give receipts for monies due and payable to the corporation from any
source whatsoever, and deposit all such moneys in the name of the corporation in
such bank, trust companies, or other depositaries as shall be selected by the
board of directors; and (c) in general perform all of the duties incident to the
office of treasurer and such other duties as from time to time may be assigned
by the president or by the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his or
her duties in such sum and with such surety or sureties as the board of
directors shall determine. Assistant Treasurers, if any, shall have the same
powers and duties, subject to the supervision of the treasurer.
4.9 Salaries. The salaries of the officers shall be fixed from
time to time by the board of directors.
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ARTICLE 5. INDEMNIFICATION OF DIRECTORS,
OFFICERS, AGENTS, AND EMPLOYEES
5.1 Indemnification of Directors. Unless otherwise provided in
the articles of incorporation, the corporation shall indemnify any individual
made a party to a proceeding because the individual is or was a director of the
corporation, against liability incurred in the proceeding, but only if such
indemnification is both (i) determined permissible and (ii) authorized, as such
are defined in subsection (a) of this Section 5.1.
5.1.1 Determination of Authorization. The corporation
shall not indemnify a director under this Section unless:
(a) a determination has been made in accordance
with the procedures set forth in the Statutes that the director
met the standard of conduct set forth in subsection (b) below,
and
(b) payment has been authorized in accordance with
the procedures set forth in the Statutes based on a conclusion
that the expenses are reasonable, the corporation has the
financial ability to make the payment, and the financial
resources of the corporation should be devoted to this use rather
than some other use by the corporation.
5.1.2 Standard of Conduct. The individual shall
demonstrate that:
(a) he or she conducted himself in good faith; and
(b) he or she reasonably believed:
(i) in the case of conduct in his official
capacity with the corporation, that his conduct was in its
best interests;
(ii) in all other cases, that his conduct was
at least not opposed to its best interests; and
(iii) in the case of any criminal proceeding, he
or she had no reasonable cause to believe his conduct was
unlawful.
5.1.3 Indemnification in Derivative Actions Limited.
Indemnification permitted under this Section in connection with a
proceeding by or in the right of the corporation is limited to
reasonable expenses incurred in connection with the proceeding.
5.1.4 Limitation on Indemnification. The corporation shall
not indemnify a director under this Section of Article 5:
(a) in connection with a proceeding by or in the
right of the corporation in which the director was adjudged
liable to the corporation; or
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(b) in connection with any other proceeding
charging improper personal benefit to the director, whether or
not involving action in his or her official capacity, in which he
or she was adjudged liable on the basis that personal benefit was
improperly received by the director.
5.2 Advance of Expenses for Directors. If a determination is made
following the procedures of the Statutes, that the director has met the
following requirements, and if an authorization of payment is made following the
procedures and standards set forth in the Statutes, then unless otherwise
provided in the articles of incorporation, the corporation shall pay for or
reimburse the reasonable expenses incurred by a director who is a party to a
proceeding in advance of final disposition of the proceeding, if:
(a) the director furnishes the corporation a written
affirmation of his good faith belief that he has met the standard of
conduct described in this section;
(b) the director furnishes the corporation a written
undertaking, executed personally or on his behalf, to repay the advance
if it is ultimately determined that he did not meet the standard of
conduct;
(c) a determination is made that the facts then known to
those making the determination would not preclude indemnification under
this Section or the Statutes.
5.3 Indemnification of Officers, Agents and Employees Who Are Not
Directors. Unless otherwise provided in the articles of incorporation, the board
of directors may indemnify and advance expenses to any officer, employee, or
agent of the corporation, who is not a director of the corporation, to the same
extent as to a director, or to any greater extent consistent with public policy,
as determined by the general or specific actions of the board of directors.
5.4 Insurance. By action of the board of directors,
notwithstanding any interest of the directors in such action, the corporation
may purchase and maintain insurance on behalf of a person who is or was a
director, officer, employee, fiduciary or agent of the corporation, against any
liability asserted against or incurred by such person in that capacity or
arising from such person's status as a director, officer, employee, fiduciary,
or agent, whether or not the corporation would have the power to indemnify such
person under the applicable provisions of the Statutes.
ARTICLE 6. STOCK
6.1 Issuance of Shares. The issuance or sale by the corporation
of any shares of its authorized capital stock of any class, including treasury
shares, shall be made only upon authorization by the board of directors, unless
otherwise provided by statute. The board of directors may authorize the issuance
of shares for consideration consisting of any tangible or intangible property or
benefit to the corporation, including cash, promissory notes, services
performed, contracts or arrangements for services to be performed, or other
securities of the corporation. Shares shall be issued for such consideration
expressed in dollars as shall be fixed from time to time by the board of
directors.
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6.2 Certificates for Shares.
6.2.1 Content. Certificates representing shares of the
corporation shall at minimum, state on their face the name of the
issuing corporation and that it is formed under the laws of the State of
Nevada; the name of the person to whom issued; and the number and class
of shares and the designation of the series, if any, the certificate
represents; and be in such form as determined by the board of directors.
Such certificates shall be signed (either manually or by facsimile) by
the president or a vice president and by the secretary or an assistant
secretary and may be sealed with a corporate seal or a facsimile
thereof. Each certificate for shares shall be consecutively numbered or
otherwise identified.
6.2.2 Legend as to Class or Series. If the corporation is
authorized to issue different classes of shares or different series
within a class, the designations, relative rights, preferences and
limitations applicable to each class and the variations in rights,
preferences and limitations determined for each series (and the
authority of the board of directors to determine variations for future
series) must be summarized on the front or back of each certificate.
Alternatively, each certificate may state conspicuously on its front or
back that the corporation will furnish the shareholder this information
on request in writing and without charge.
6.2.3 Shareholder List. The name and address of the person
to whom the shares represented thereby are issued, with the number of
shares and date of issue, shall be entered on the stock transfer books
of the corporation.
6.2.4 Transferring Shares. All certificates surrendered to
the corporation for transfer shall be canceled and no new certificates
shall be issued until the former certificate for a like number of shares
shall have been surrendered and canceled, except that in case of a lost,
destroyed, or mutilated certificate, a new one may be issued therefor
upon such terms and indemnity to the corporation as the board of
directors may prescribe.
6.3 Shares Without Certificates
6.3.1 Issuing Shares Without Certificates. Unless the
articles of incorporation provide otherwise, the board of directors may
authorize the issue of some or all the shares of any or all of its
classes or series without certificates. The authorization does not
affect shares already represented by certificates until they are
surrendered to the corporation.
6.3.2 Information Statement Required. Within a reasonable
time after the issue or transfer of shares without certificates, the
corporation shall send the shareholder a written statement containing,
at a minimum, the information required by the Statutes.
6.4 Registration of the Transfer of Shares. Registration of the
transfer of shares of the corporation shall be made only on the stock transfer
books of the corporation. In order to register a transfer, the record owner
shall surrender the shares to the corporation for cancellation, properly
endorsed by the appropriate person or persons with reasonable assurances that
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the endorsements are genuine and effective. Unless the corporation has
established a procedure by which a beneficial owner of shares held by a nominee
is to be recognized by the corporation as the owner, the person in whose name
shares stand in the books of the corporation shall be deemed by the corporation
to be the owner thereof for all purposes.
6.5 Restrictions on Transfer or Registration of Shares. The board
of directors or shareholders may impose restrictions on the transfer or
registration of transfer of shares (including any security convertible into, or
carrying a right to subscribe for or acquire shares). A restriction does not
affect shares issued before the restriction was adopted unless the holders of
the shares are parties to the restriction agreement or voted in favor of or
otherwise consented to the restriction.
A restriction on the transfer or registration of transfer of
shares may be authorized:
(a) to maintain the corporation's status when it is
dependent on the number or identity of its shareholders;
(b) to preserve entitlements, benefits or exemptions under
federal or local laws; and
(c) for any other reasonable purposes.
A restriction on the transfer or registration of transfer of
shares may:
(a) obligate the shareholder first to offer the
corporation or other persons (separately, consecutively or
simultaneously) an opportunity to acquire the restricted shares;
(b) obligate the corporation or other persons (separately,
consecutively or simultaneously) to acquire the restricted shares;
(c) require as a condition to such transfer or
registration, that any one or more persons, including the holders of any
of its shares, approve the transfer or registration if the requirement
is not manifestly unreasonable; or
(d) prohibit the transfer or the registration of transfer
of the restricted shares to designated persons or classes of persons, if
the prohibition is not manifestly unreasonable.
A restriction on the transfer or registration of transfer of
shares is valid and enforceable against the holder or a transferee of the holder
if the restriction is authorized by this Section and its existence is noted
conspicuously on the front or back of the certificate or is contained in the
information statement required by this Article 6 with regard to shares issued
without certificates. Unless so noted, a restriction is not enforceable against
a person without knowledge of the restriction.
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6.6 Corporation's Acquisition of Shares. The corporation may
acquire its own shares and the shares so acquired constitute authorized but
unissued shares.
If the articles of incorporation prohibit the reissue of acquired
shares, the number of authorized shares is reduced by the number of shares
acquired, effective upon amendment of the articles of incorporation, which
amendment may be adopted by the shareholders or the board of directors without
shareholder action. The articles of amendment must be delivered to the Secretary
of State and must set forth:
(a) the name of the corporation;
(b) the reduction in the number of authorized shares,
itemized by class and series;
(c) the total number of authorized shares, itemized by
class and series, remaining after reduction of the shares; and
(d) a statement that the amendment was adopted by the
board of directors without shareholder action and that shareholder
action was not required.
ARTICLE 7. DISTRIBUTIONS
7.1 Distributions to Shareholders. The board of directors may
authorize, and the corporation may make, distributions to the shareholders of
the corporation subject to any restrictions in the corporation's articles of
incorporation and in the Statutes.
7.2 Unclaimed Distributions. If the corporation has mailed three
successive distributions to a shareholder at the shareholder's address as shown
on the corporation's current record of shareholders and the distributions have
been returned as undeliverable, no further attempt to deliver distributions to
the shareholder need be made until another address for the shareholder is made
known to the corporation, at which time all distributions accumulated by reason
of this Section, except as otherwise provided by law, shall be mailed to the
shareholder at such other address.
ARTICLE 8. MISCELLANEOUS
8.1 Inspection of Records by Shareholders and Directors. A
shareholder or director of the corporation is entitled to inspect and copy,
during regular business hours at the corporation's principal office, any of the
records of the corporation required to be maintained by the corporation under
the Statutes, if such person gives the corporation written notice of the demand
at least five business days before the date on which such a person wishes to
inspect and copy. The scope of such inspection right shall be as provided under
the Statutes.
8.2 Corporate Seal. The board of directors may provide a
corporate seal which may be circular in form and have inscribed thereon any
designation including the name of the corporation, the state of incorporation,
and the words "Corporate Seal."
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8.3 Amendments. The corporation's board of directors may amend or
repeal the corporations' bylaws at any time unless:
(a) the articles of incorporation or the Statutes reserve
this power exclusively to the shareholders in whole or part; or
(b) the shareholders in adopting, amending, or repealing a
particular bylaw provide expressly that the board of directors may not
amend or repeal that bylaw; or
(c) the bylaw either establishes, amends, or deletes, a
greater shareholder quorum or voting requirement.
Any amendment which changes the voting or quorum requirement for
the board must meet the same quorum requirement and be adopted by the same vote
and voting groups required to take action under the quorum and voting
requirements then in effect or proposed to be adopted, whichever is greater.
DATED this 21st day of July, 1999.
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James R. Ladd, Director
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