BYLAWS
OF
GOLDEN DRAGON HOLDING CO.
Article I
SHAREHOLDERS
1. ANNUAL SHAREHOLDERS' MEETING. The annual shareholders' meeting shall
be held on the date and at the time and place fixed from time to time by the
board of directors.
2. SPECIAL SHAREHOLDERS' MEETING. A special shareholders' meeting for
any purpose or purposes, may be called by the board of directors or the
president. The Corporation shall also hold a special shareholders' meeting in
the event it receives, in the manner specified in Article VII, Section 3, one or
more written demands for the meeting, stating the purpose or purposes for which
it is to be held, signed and dated by the holders of shares representing not
less than one-tenth of all of the votes entitled to be cast on any issue at the
meeting. Special meetings shall be held at the principal office of the
Corporation or at such other place as the board of directors or the president
may determine.
3. RECORD DATE FOR DETERMINATION OF SHAREHOLDERS.
(a) In order to make a determination of shareholders (1)
entitled to notice of or to vote at any shareholders' meeting or at any
adjournment of a shareholders' meeting, (2) entitled to demand a
special shareholders' meeting, (3) entitled to take any other action,
(4) entitled to receive payment of a share dividend or a distribution,
or (5) for any other purpose; the board of directors may fix a future
date as the record date for such determination of shareholders provided
that the record date may be fixed not more than seventy days before the
date of the proposed action.
(b) Unless otherwise specified when the record date is fixed,
the time of day for determination of shareholders shall be as of the
Corporation's close of business on the record date.
(c) A determination of shareholders entitled to be given
notice of or to vote at a shareholders' meeting is effective for any
adjournment of the meeting unless the board of directors fixes a new
record date, which the board shall do if the meeting is adjourned to a
date more than one hundred twenty days after the date fixed for the
original meeting.
(d) If no record date is otherwise fixed, the record date for
determining shareholders entitled to be given notice of and to vote at
an annual or special shareholders' meeting is the day before the first
notice is given to shareholders.
(e) The record date for determining shareholders entitled to
take action without a meeting pursuant to Article I, Section 10 is the
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date a written notice upon which the action is taken is first received
by the Corporation.
4. VOTING LIST.
(a) After a record date is fixed for a shareholders' meeting,
the secretary shall prepare a list of the names of all its shareholders
who are entitled to be given notice of the meeting. The list shall be
arranged by voting groups and within each voting group by class or
series of shares, shall be alphabetical within each class or series,
and shall show the address of, and the number of shares of each such
class and series that are held by, each shareholder.
(b) The shareholders' list shall be available for inspection
by any shareholder, beginning the earlier of ten days before the
meeting for which the list was prepared or two business days after
notice of the meeting is given and continuing through the meeting, and
any adjournment thereof, at the Corporation's principal office or at a
place identified in the notice of the meeting in the city where the
meeting will be held.
(c) The secretary shall make the shareholders' list available
at the meeting, and any shareholder or agent or attorney of a
shareholder is entitled to inspect the list at any time during the
meeting or any adjournment.
5. NOTICE TO SHAREHOLDERS.
(a) The secretary shall give notice to shareholders of the
date, time, and place of each annual and special shareholders' meeting
no fewer than ten nor more than sixty days before the date of the
meeting; except that, if the articles of incorporation are to be
amended to increase the number of authorized shares, at least thirty
days' notice shall be given. Except as otherwise required by the
Delaware General Corporation Law, the secretary shall be required to
give such notice only to shareholders entitled to vote at the meeting.
(b) Notice of an annual shareholders' meeting need not include
a description of the purpose or purposes for which the meeting is
called unless a purpose of the meeting is to consider an amendment to
the articles of incorporation, a restatement of the articles of
incorporation, a plan of merger or share exchange, disposition of
substantially all of the property of the Corporation, consent by the
Corporation to the disposition of property by another entity, or
dissolution of the Corporation.
(c) Notice of a special shareholders' meeting shall include a
description of the purpose or purposes for which the meeting is called.
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(d) Notice of a shareholders' meeting shall be in writing and
shall be given
(1) by deposit in the United States mail, properly
addressed to the shareholder's address shown in the
Corporation's current record of shareholders, first class
postage prepaid, and, if so given, shall be effective when
mailed; or
(2) by telegraph, teletype, electronically
transmitted facsimile, electronic mail, mail, or private
carrier or by personal delivery to the shareholder, and, if so
given, shall be effective when actually received by the
shareholder.
(e) If an annual or special shareholders' meeting is adjourned
to a different date, time, or place, notice need not be given of the
new date, time, or place if the new date, time, or place is announced
at the meeting before adjournment; provided, however, that, if a new
record date for the adjourned meeting is fixed pursuant to Article I,
Section 3(c), notice of the adjourned meeting shall be given to persons
who are shareholders as of the new record date.
(f) If three successive notices are given by the Corporation,
whether with respect to a shareholders' meeting or otherwise, to a
shareholder and are returned as undeliverable, no further notices to
such shareholder shall be necessary until another address for the
shareholder is made known to the Corporation.
6. QUORUM. 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. One-third of the votes entitled to be cast on the matter
by the voting group shall constitute a quorum of that voting group for action on
the matter. If a quorum does not exist with respect to any voting group, the
president or any shareholder or proxy that is present at the meeting, whether or
not a member of that voting group, may adjourn the meeting to a different date,
time, or place, and (subject to the next sentence) notice need not be given of
the new date, time, or place if the new date, time, or place is announced at the
meeting before adjournment. If a new record date for the adjourned meeting is or
must be fixed pursuant to Article I, Section 3(c), notice of the adjourned
meeting shall be given pursuant to Article I, Section 5 to persons who are
shareholders as of the new record date. At any adjourned meeting at which a
quorum exists, any matter may be acted upon that could have been acted upon at
the meeting originally called; provided, however, that, if new notice is given
of the adjourned meeting, then such notice shall state the purpose or purposes
of the adjourned meeting sufficiently to permit action on such matters. Once a
share is represented for any purpose at a meeting, including the purpose of
determining that a quorum exists, 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 shall be set for that adjourned meeting.
7. VOTING ENTITLEMENT OF SHARES. Except as stated in the articles of
incorporation, each outstanding share, regardless of class, is entitled to one
vote, and each fractional share is entitled to a corresponding fractional vote,
on each matter voted on at a shareholders' meeting.
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8. PROXIES; ACCEPTANCE OF VOTES AND CONSENTS.
(a) A shareholder may vote either in person or by proxy.
(b) An appointment of a proxy is not effective against the
Corporation until the appointment is received by the Corporation. An
appointment is valid for eleven months unless a different period is
expressly provided in the appointment form.
(c) The Corporation may accept or reject any appointment of a
proxy, revocation of appointment of a proxy, vote, consent, waiver, or
other writing purportedly signed by or for a shareholder, if such
acceptance or rejection is in accordance with the provisions of the
Delaware General Corporation Law.
9. WAIVER OF NOTICE.
(a) A shareholder may waive any notice required by the
Delaware General Corporation Law, the articles of incorporation or
these bylaws, whether before or after the date or time stated in the
notice as the date or time when any action will occur or has occurred.
The waiver shall be in writing, be signed by the shareholder entitled
to the notice, and be delivered to the Corporation for inclusion in the
minutes or filing with the corporate records, but such delivery and
filing shall not be conditions of the effectiveness of the waiver.
(b) A shareholder's attendance at a meeting 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 defective notice, and 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.
10. ACTION BY SHAREHOLDERS WITHOUT A MEETING. Whenever the vote of
stockholders at a meeting thereof is required or permitted to be taken in
connection with corporate action, by any provisions of the Delaware General
Corporation Law or the Certificate of Incorporation, the meeting and vote of
stockholders may be dispensed with, if a majority of the stockholders who would
have been entitled to vote upon the action if such meeting were held, shall
consent in writing to such corporate action being taken, as allowed. Action
taken pursuant to this section shall be effective when the Corporation has
received writings that describe and consent to the action, signed by a majority
of the shareholders entitled to vote thereon. Action taken pursuant to this
section shall be effective as of the date the last writing necessary to effect
the action is received by the Corporation, unless all of the writings necessary
to effect the action specify another date, which may be before or after the date
the writings are received by the Corporation. Such action shall have the same
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effect as action taken at a meeting of shareholders and may be described as such
in any document. Any shareholder who has signed a writing describing and
consenting to action taken pursuant to this section may revoke such consent by a
writing signed by the shareholder describing the action and stating that the
shareholder's prior consent thereto is revoked, if such writing is received by
the Corporation before the effectiveness of the action.
11. MEETINGS BY TELECOMMUNICATIONS. To the extent provided by
resolution of the Board of Directors or in the notice of the meeting, any or all
of the shareholders may participate in an annual or special shareholders'
meeting by, or the meeting may be conducted through the use of, any means of
communication by which all persons participating in the meeting may hear each
other during the meeting. A shareholder participating in a meeting by this means
is deemed to be present in person at the meeting.
Article II
DIRECTORS
1. AUTHORITY OF THE BOARD OF DIRECTORS. The corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
Corporation shall be managed under the direction of, a board of directors.
2. NUMBER. Subject to the provisions of the Articles of Incorporation,
the number of directors shall be fixed by resolution of the board of directors
from time to time and may be increased or decreased by resolution adopted by the
board of directors from time to time, but no decrease in the number of directors
shall have the effect of shortening the term of any incumbent director. The
number of directors shall be no less than three directors in order to carry out
any business other than appointment of a replacement director to fill a vacancy
on the Board.
3. QUALIFICATION. Directors shall be natural persons at least eighteen
years old but need not be residents of the State of Delaware or shareholders of
the Corporation.
4. ELECTION. The board of directors shall be elected at the annual meet
-ing of the shareholders or at a special meeting called for that purpose.
5. TERM. Each director shall be elected to hold office until the next
annual meeting of shareholders and until the director's successor is elected and
qualified unless the directors are appointed to staggered terms as provided in
the Articles of Incorporation. In such case, the terms of the directors shall
expire as set forth in the Articles of Incorporation
6. RESIGNATION. A director may resign at any time by giving written
notice of his or her resignation to any other director or (if the director is
not also the secretary) to the secretary. The resignation shall be effective
when it is received by the other director or secretary, as the case may be,
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unless the notice of resignation specifies a later effective date. Acceptance of
such resignation shall not be necessary to make it effective unless the notice
so provides.
7. REMOVAL. Any director may be removed by the shareholders of the
voting group that elected the director, with or without cause, at a meeting
called, Notice of which includesthat purpose. The notice of the meeting shall
state that the purpose, or one of the purposes, of the meeting is removal of the
director. A director may be removed only if the number of votes cast in favor of
removal exceeds the number of votes cast against removal.
8. VACANCIES.
(a) If a vacancy occurs on the board of directors, including a
vacancy resulting from an increase in the number of directors:
(1) The shareholders may fill the vacancy at the
next annual meeting or at a special meeting called for
that purpose; or
(2) The board of directors may fill the vacancy; or
(3) 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.
(b) Notwithstanding Article II, Section 8(a), if the vacant
office was held by a director elected by a voting group of
shareholders, then, if one or more of the remaining directors were
elected by the same voting group, only such directors are entitled to
vote to fill the vacancy if it is filled by directors, and they may do
so by the affirmative vote of a majority of such directors remaining in
office; and only the holders of shares of that voting group are
entitled to vote to fill the vacancy if it is filled by the
shareholders.
(c) A vacancy that will occur at a specific later date, by
reason of a resignation that will become effective at a later date
under Article II, Section 6 or otherwise, may be filled before the
vacancy occurs, but the new director may not take office until the
vacancy occurs.
9. MEETINGS. The board of directors may hold regular or special
meetings in or out of Delaware. A regular meeting shall be held in the principal
office of the Corporation or at such other place, on such date or dates, and at
such time as may be established by resolution of the board of directors. If the
board shall establish a date and time for a regular meeting of the board, such
meeting may be held without notice of the date, time, place, or purpose of the
meeting The board of directors may, by resolution, establish other dates, times
and places for additional regular meetings, which may thereafter be held without
further notice. Special meetings may be called by the president or by any two
directors and shall be held at the principal office of the Corporation unless
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another place is consented to by every director. At any time when the board
consists of a single director, that director may act at any time, date, or place
without notice.
10. NOTICE OF SPECIAL MEETING. Notice of a special meeting shall be
given to every director at least twenty four hours before the time of the
meeting, stating the date, time, and place of the meeting. The notice need not
describe the purpose of the meeting. Notice may be given orally to the director,
personally or by telephone or other wire or wireless communication. Notice may
also be given in writing by telegraph, teletype, electronically transmitted
facsimile, electronic mail, mail, or private carrier. Notice shall be effective
at the earliest of the time it is received; five days after it is deposited in
the United States mail, properly addressed to the last address for the director
shown on the records of the Corporation, first class postage prepaid; or the
date shown on the return receipt if mailed by registered or certified mail,
return receipt requested, postage prepaid, in the United States mail and if the
return receipt is signed by the director to which the notice is addressed.
11. QUORUM. Except as provided in Article II, Section 8, a majority of
the number of directors fixed in accordance with these Bylaws shall constitute a
quorum for the transaction of business at all meetings of the board of
directors. The act of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the board of directors, except as
otherwise specifically required by law.
12. WAIVER OF NOTICE.
(a) A director may waive any notice of a meeting before or
after the time and date of the meeting stated in the notice. Except as
provided by Article II, Section 12(b), the waiver shall be in writing
and shall be signed by the director. Such waiver shall be delivered to
the secretary for filing with the corporate records, but such delivery
and filing shall not be conditions of the effectiveness of the waiver.
(b) A director's attendance at or participation in a meeting
waives any required notice to him or her of the meeting unless, at the
beginning of the meeting or promptly upon his or her later arrival, the
director objects to holding the meeting or transacting business at the
meeting because of lack of notice or defective notice and does not
thereafter vote for or assent to action taken at the meeting.
13. ATTENDANCE BY TELEPHONE. One or more 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 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.
14. DEEMED ASSENT TO ACTION. A director who is present at a meeting of
the board of directors when corporate action is taken shall be deemed to have
assented to all action taken at the meeting unless:
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(1) The director objects at the beginning of the meeting, or
promptly upon his or her arrival, to holding the meeting or transacting
business at the meeting and does not thereafter vote for or assent to
any action taken at the meeting;
(2) The director contemporaneously requests that his or her
dissent or abstention as to any specific action taken be entered in the
minutes of the meeting; or
(3) The director causes written notice of his or her dissent
or abstention as to any specific action to be received by the presiding
officer of the meeting before adjournment of the meeting or by the
secretary (or, if the director is the secretary, by another director)
promptly after adjournment of the meeting. The right of dissent or
abstention pursuant to this Article II, Section 14 as to a specific
action is not available to a director who votes in favor of the action
taken.
15. ACTION BY DIRECTORS WITHOUT A MEETING. Any action required or
permitted by law to be taken at a board of directors' meeting may be taken
without a meeting if all members of the board consent to such action in writing.
Action shall be deemed to have been so taken by the board at the time the last
director signs a written consent the action taken, unless, before such time, any
director has revoked his or her consent by a written notice of revocation by the
director and received by the secretary or any other person authorized by the
bylaws or the board of directors to receive such a revocation. Such action shall
be effective at the time and date it is so taken unless the directors establish
a different effective time or date. Such action has the same effect as action
taken at a meeting of directors and may be described as such in any document.
16. NOMINATIONS OF DIRECTORS.
(a) The Board of Directors may nominate persons to stand for
election to the board of directors at any time prior to a meeting of
shareholders at which directors are to be elected.
(b) Any shareholder may nominate a person to stand for
election to the Board of Directors provided such shareholder provides
written notification of the intention to nominate such persons at the
next shareholder meeting not less than 90 days in advance of such
meeting, and provided further such notice is accompanied by information
regarding the proposed nominee meeting the requirements of part III of
SEC Regulation SB or Regulation SK and information regarding all direct
and indirect business or personal relationships between the shareholder
and the proposed nominee.
Article III
COMMITTEES OF THE BOARD OF DIRECTORS
1. COMMITTEES OF THE BOARD OF DIRECTORS.
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(a) Subject to the provisions of the Delaware General
Corporation Law, the board of directors may create one or more
committees and appoint one or more members of the board of directors to
serve on them. The creation of a committee and appointment of members
to it shall require the approval of a majority of all the directors in
office when the action is taken, whether or not those directors
constitute a quorum of the board.
(b) The provisions of these bylaws governing meetings, action
without meeting, notice, waiver of notice, and quorum and voting
requirements of the board of directors apply to committees and their
members as well.
(c) To the extent specified by resolution adopted from time to
time by a majority of all the directors in office when the resolution
is adopted, whether or not those directors constitute a quorum of the
board, each committee shall exercise the authority of the board of
directors with respect to the corporate powers and the management of
the business and affairs of the Corporation; except that a committee
shall not:
(1) Authorize distributions;
(2) Approve or propose to shareholders action that
the Delaware General Corporation Law requires to be approved
by shareholders;
(3) Fill vacancies on the board of directors or on
any of its committees;
(4) Amend the articles of incorporation pursuant to
the Delaware General Corporation Law;
(5) Adopt, amend, or repeal bylaws;
(6) Approve a plan of merger not requiring sharehold-
-er approval;
(7) Authorize or approve reacquisition of shares,
except according to a formula or method prescribed by the
board of directors; or
(8) Authorize or approve the issuance or sale of
shares, or a contract for the 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.
(d) The creation of, delegation of authority to, or action by,
a committee does not alone constitute compliance by a director with
applicable standards of conduct.
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Article IV
OFFICERS
1. GENERAL.
(a) The Corporation shall have as officers a president and a
secretary, each of whom who shall be appointed by the board of
directors. The board of directors may appoint as additional officers a
chairman and other officers of the board.
(b) The board of directors, the president, and such other
subordinate officers as the board of directors may authorize from time
to time, acting singly, may appoint as additional officers one or more
vice presidents, assistant secretaries, assistant treasurers, and such
other subordinate officers as the board of directors, the president, or
such other appointing officers deem necessary or appropriate.
(c) The officers of the Corporation shall hold their offices
for such terms and shall exercise such authority and perform such
duties as shall be determined from time to time by these Bylaws, the
board of directors, or (with respect to officers whom are appointed by
the president or other appointing officers) the persons appointing
them; provided, however, that the board of directors may change the
term of offices and the authority of any officer appointed by the
president or other appointing officers.
(d) Any two or more offices may be held by the same person.
The officers of the Corporation shall be natural persons at least
eighteen years old.
2. TERM. Each officer shall hold office from the time of appointment
until the time of removal or resignation pursuant to Article IV, Section 3 or
until the officer's death.
3. REMOVAL AND RESIGNATION. Any officer appointed by the board of
directors may be removed at any time by the board of directors. Any officer
appointed by the president or other appointing officer may be removed at any
time by the board of directors or by the person appointing the officer. Any
officer may resign at any time by giving written notice of resignation to any
director (or to any director other than the resigning officer if the officer is
also a director), to the president, to the secretary, or to the officer who
appointed the officer. Acceptance of such resignation shall not be necessary to
make it effective, unless the notice so provides.
4. PRESIDENT. The president shall preside at all meetings of
shareholders, and shall also preside at all meetings of the board of directors
unless the board of directors has appointed a chairman, vice chairman, or other
officer of the board and has authorized such person to preside at meetings of
the board of directors instead of the president. Subject to the direction and
control of the board of directors, the president of the Corporation shall have
general and active management of the business of the Corporation and shall see
that all orders and resolutions of the board of directors are carried into
effect. The president may negotiate, enter into, and execute contracts, deeds,
and other instruments on behalf of the Corporation as are necessary and
appropriate to the conduct to the business and affairs of the Corporation or as
are approved by the board of directors. The president shall have such additional
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authority and duties as are appropriate and customary for the office of
president, except as the same may be expanded or limited by the board of
directors from time to time.
5. VICE PRESIDENT. The vice president, if any, or, if there are more
than one, the vice presidents in the order determined by the board of directors
or the president (or, if no such determination is made, in the order of their
appointment), shall be the officer or officers next in seniority after the
president. Each vice president shall have such authority and duties as are
prescribed by the board of directors or president. Upon the death, absence, or
disability of the president, the vice president, if any, or, if there are more
than one, the vice presidents in the order determined by the board of directors
or the president, shall have the authority and duties of the president.
6. SECRETARY. The secretary shall be responsible for the preparation
and maintenance of minutes of the meetings of the board of directors and of the
shareholders and of the other records and information required to be kept by the
Corporation under the Delaware General Corporation Law and for authenticating
records of the corporation. The secretary shall also give, or cause to be given,
notice of all meetings of the shareholders and special meetings of the board of
directors, keep the minutes of such meetings, have charge of the corporate seal,
if any, and have authority to affix the corporate seal to any instrument
requiring it (and, when so affixed, it may be attested by the secretary's
signature), be responsible for the maintenance of all other corporate records
and files and for the preparation and filing of reports to governmental agencies
(other than tax returns), and have such other authority and duties as are
appropriate and customary for the office of secretary, except as the same may be
expanded or limited by the board of directors from time to time.
7. ASSISTANT SECRETARY. The assistant secretary, if any, or, if there
are more than one, the assistant secretaries in the order determined by the
board of directors or the secretary (or, if no such determination is made, in
the order of their appointment) shall, under the supervision of the secretary,
perform such duties and have such authority as may be prescribed from time to
time by the board of directors or the secretary. Upon the death, absence, or
disability of the secretary, the assistant secretary, if any, or, if there are
more than one, the assistant secretaries in the order designated by the board of
directors or the secretary (or, if no such determination is made, in the order
of their appointment), shall have the authority and duties of the secretary.
8. TREASURER. The treasurer, if any, shall have control of the funds
and the care and custody of all stocks, bonds, and other securities owned by the
Corporation, and shall be responsible for the preparation and filing of tax
returns. The treasurer shall receive all moneys paid to the Corporation and,
subject to any limits imposed by the board of directors, shall have authority to
give receipts and vouchers, to sign and endorse checks and warrants in the
Corporation's name and on the Corporation's behalf, and give full discharge for
the same. The treasurer shall also have charge of disbursement of funds of the
Corporation, shall keep full and accurate records of the receipts and
disbursements, and shall deposit all moneys and other valuable effects in the
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name and to the credit of the Corporation in such depositories as shall be
designated by the board of directors. The treasurer shall have such additional
authority and duties as are appropriate and customary for the office of
treasurer, except as the same may be expanded or limited by the board of
directors from time to time.
9. COMPENSATION. Officers shall receive such compensation for their
services as may be authorized or ratified by the board of directors. Election or
appointment of an officer shall not of itself create a contractual right to
compensation for services performed as such officer.
Article V
INDEMNIFICATION
1. DEFINITIONS. As used in this article:
(a) "Corporation" includes any domestic or foreign entity that
is a predecessor of the Corporation by reason of a merger or other
transaction in which the predecessor's existence ceased upon
consummation of the transaction.
(b) "Director" means an individual who is or was a director of
the Corporation or an individual who, while a director of the
Corporation, is or was serving at the Corporation's request as a
director, officer, partner, trustee, employee, fiduciary, or agent of
another domestic or foreign corporation or other person or of an
employee benefit plan. A director is considered to be serving an
employee benefit plan at the Corporation's request if his or her duties
to the Corporation also impose duties on, or otherwise involve services
by, the director to the plan or to participants in or beneficiaries of
the plan. "Director" includes, unless the context requires otherwise,
the estate or personal representative of a director.
(c) "Expenses" includes counsel fees.
(d) "Liability" means the obligation incurred with respect to
a proceeding to pay a judgment, settlement, penalty, fine, including an
excise tax assessed with respect to an employee benefit plan, or
reasonable expenses.
(e) "Official capacity" means, when used with respect to a
director, the office of director in the Corporation and, when used with
respect to a person other than a director as contemplated in Article V,
Section 2(a), the office in the Corporation held by the officer or the
employment, fiduciary, or agency relationship undertaken by the
employee, fiduciary, or agent on behalf of the Corporation. "Official
capacity" does not include service for any other domestic or foreign
corporation or other person or employee benefit plan.
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(f) "Party" includes a person who was, is, or is threatened to
be made a named defendant or respondent in a proceeding.
(g) "Proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative,
or investigative and whether formal or informal.
2. AUTHORITY TO INDEMNIFY DIRECTORS.
(a) Except as provided in Article V, Section 2(d), the
Corporation may indemnify a person made a party to a proceeding because
the person is or was a director against liability incurred in the
proceeding if:
(1) The person conducted himself or herself in good
faith; and
(2) The person reasonably believed:
(A) In the case of conduct in an official
capacity with the Corporation, that his or her
conduct was in the Corporation's best interests; and
(B) In all other cases, that his or her
conduct was at least not opposed to the Corporation's
best interests; and
(3) In the case of any criminal proceeding, the
person had no reasonable cause to believe his or her conduct
was unlawful.
(b) A director's conduct with respect to an employee benefit
plan for a purpose the director reasonably believed to be in the
interests of the participants in or beneficiaries of the plan is
conduct that satisfies the requirement of Article V, Section
2(a)(2)(B). A director's conduct with respect to an employee benefit
plan for a purpose that the director did not reasonably believe to be
in the interests of the participants in or beneficiaries of the plan
shall be deemed not to satisfy the requirements of Article V, Section
2(a)(1).
(c) The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent is not, of itself, determinative that the director did not
meet the standard of conduct described in this Article V, Section 2.
(d) The Corporation may not indemnify a director under this
Article V, Section 2:
(1) 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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(2) In connection with any other proceeding charging
that the director derived an improper personal benefit,
whether or not involving action in an official capacity, in
which proceeding the director was adjudged liable on the basis
that he or she derived an improper personal benefit.
(e) Indemnification permitted under this Article V, Section 2
in connection with a proceeding by or in the right of the Corporation
is limited to reasonable expenses incurred in connection with the
proceeding.
3. MANDATORY INDEMNIFICATION OF DIRECTORS. The Corporation shall
indemnify a person who was wholly successful, on the merits or otherwise, in the
defense of any proceeding to which the person was a party because the person is
or was a director, against reasonable expenses incurred by him or her in
connection with the proceeding.
4. ADVANCE OF EXPENSES TO DIRECTORS.
(a) The Corporation may 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:
(1) The director furnishes to the Corporation a
written affirmation of the director's good faith belief that
he or she has met the standard of conduct described in Article
V, Section 2.
(2) The director furnishes to the Corporation a
written undertaking, executed personally or on the director's
behalf, to repay the advance if it is ultimately determined
that he or she did not meet the standard of conduct; and
(3) A determination is made that the facts then known to those
making the determination would not preclude indemnification under this
article.
(b) The undertaking required by Article V, Section
4(a)(2) shall be an unlimited general obligation of the
director but need not be secured and may be accepted without
reference to financial ability to make repayment.
(c) Determinations and authorizations of payments
under this Article V, Section 4 shall be made in the manner
specified in Article V, Section 6.
5. COURT-ORDERED INDEMNIFICATION OF DIRECTORS. A director who is or was
a party to a proceeding may apply for indemnification to the court conducting
the proceeding or to another court of competent jurisdiction. On receipt of an
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application, the court, after giving any notice the court considers necessary,
may order indemnification in the following manner:
(1) If it determines that the director is entitled to
mandatory indemnification under Article V, Section 3, the court shall
order indemnification, in which case the court shall also order the
Corporation to pay the director's reasonable expenses incurred to
obtain court-ordered indemnification.
(2) If it determines that the director is fairly and
reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not the director met the standard of conduct
set forth in Article V, Section 2(a) or was adjudged liable in the
circumstances described in Article V, Section 2(d), the court may order
such indemnification as the court deems proper; except that the
indemnification with respect to any proceeding in which liability shall
have been adjudged in the circumstances described in Article V, Section
2(d) is limited to reasonable expenses incurred in connection with the
proceeding and reasonable expenses incurred to obtain court-ordered
indemnification.
6. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION OF DIRECTORS.
(a) The Corporation may not indemnify a director under Article
V, Section 2 unless authorized in the specific case after a
determination has been made that indemnification of the director is
permissible in the circumstances because the director has met the
standard of conduct set forth in Article V, Section 2. The Corporation
shall not advance expenses to a director under Article V, Section 4
unless authorized in the specific case after the written affirmation
and undertaking required by Article V, Section 4(a)(1) and 4(a)(2) are
received and the determination required by Article V, Section 4(a)(3)
has been made.
(b) The determinations required by Article V, Section 6(a)
shall be made:
(1) By the board of directors by a majority vote of
those present at a meeting at which a quorum is present, and
only those directors not parties to the proceeding shall be
counted in satisfying the quorum; or
(2) If a quorum cannot be obtained, by a majority
vote of a committee of the board of directors designated by
the board of directors, which committee shall consist of two
or more directors not parties to the proceeding; except that
directors who are parties to the proceeding may participate in
the designation of directors for the committee.
(c) If a quorum cannot be obtained as contemplated in Article
V, Section 6(b)(1), and a committee cannot be established under Article
V, Section 6(b)(2) if a quorum is obtained or a committee is
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designated, if a majority of the directors constituting such quorum or
such committee so directs, the determination required to be made by
Article V, Section 6(a) shall be made:
(1) By independent legal counsel selected by a vote
of the board of directors or the committee in the manner
specified in Article V, Section 6(b)(1) or 6(b)(2), or, if a
quorum of the full board cannot be obtained and a committee
cannot be established, by independent legal counsel selected
by a majority vote of the full board of directors; or
(2) By the shareholders.
(d) Authorization of indemnification and advance of expenses
shall be made in the same manner as the determination that
indemnification or advance of expenses is permissible; except that, if
the determination that indemnification or advance of expenses is
permissible is made by independent legal counsel, authorization of
indemnification and advance of expenses shall be made by the body that
selected such counsel.
7. INDEMNIFICATION OF OFFICERS, EMPLOYEES, FIDUCIARIES, AND AGENTS.
(a) An officer is entitled to mandatory indemnification under
Article V, Section 3 and is entitled to apply for court-ordered
indemnification under Article V, Section 5, in each case to the same
extent as a director;
(b) The Corporation may indemnify and advance expenses to an
officer, employee, fiduciary, or agent of the Corporation to the same
extent as to a director; and
(c) The Corporation may also indemnify and advance expenses to
an officer, employee, fiduciary, or agent who is not a director to a
greater extent than is provided in these bylaws, if not inconsistent
with public policy, and if provided for by general or specific action
of its board of directors or shareholders or by contract.
8. INSURANCE. 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, or who, while a director, officer, employee,
fiduciary, or agent of the Corporation, is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee, fiduciary, or
agent of another domestic or foreign corporation or other person or of an
employee benefit plan, against liability asserted against or incurred by the
person in that capacity or arising from his or her status as a director,
officer, employee, fiduciary, or agent, whether or not the Corporation would
have power to indemnify the person against the same liability under Article V,
Sections 2, 3, or 7. Any such insurance may be procured from any insurance
company designated by the board of directors, whether such insurance company is
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formed under the laws of this state or any other jurisdiction of the United
States or elsewhere, including any insurance company in which the Corporation
has an equity or any other interest through stock ownership or otherwise.
9. NOTICE TO SHAREHOLDERS OF INDEMNIFICATION OF DIRECTOR. If the
Corporation indemnifies or advances expenses to a director under this article in
connection with a proceeding by or in the right of the Corporation, the
Corporation shall give written notice of the indemnification or advance to the
shareholders with or before the notice of the next shareholders' meeting. If the
next shareholder action is taken without a meeting at the instigation of the
board of directors, such notice shall be given to the shareholders at or before
the time the first shareholder signs a writing consenting to such action.
Article VI
SHARES
1. CERTIFICATES. Certificates representing shares of the capital stock
of the Corporation shall be in such form as is approved by the board of
directors and shall be signed by the chairman or vice chairman of the board of
directors (if any), or the president and by the secretary or an assistant
secretary or the treasurer or an assistant treasurer. All certificates shall be
consecutively numbered, and the names of the owners, the number of shares, and
the date of issue shall be entered on the books of the Corporation. Each
certificate representing shares shall state upon its face
(a) That the Corporation is organized under the laws of the
State of Delaware;
(b) The name of the person to whom issued;
(c) The number and class of the shares and the designation of
the series, if any, that the certificate represents;
(d) The par value, if any, of each share represented by the
certificate;
(e) Any restrictions imposed by the Corporation upon the
transfer of the shares represented by the certificate; and
(f) Other matters required to be stated on the certificates by
the Delaware General Corporation Law, s. 7-106-206 and other applicable
sections.
2. FACSIMILE SIGNATURES. Where a certificate is signed
(a) By a transfer agent other than the Corporation or its
employee, or
(b) By a registrar other than the Corporation or its employee,
any or all of the officers' signatures on the certificate required by
Article VI, Section 1 may be facsimile. If any officer, transfer agent
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or registrar who has signed, or whose facsimile signature or signatures
have been placed upon, any certificate, shall cease to be such officer,
transfer agent, or registrar, whether because of death, resignation, or
otherwise, before the certificate is issued by the Corporation, it may
nevertheless be issued by the Corporation with the same effect as if he
or she were such officer, transfer agent or registrar at the date of
issue.
3. TRANSFERS OF SHARES. Transfers of shares shall be made on the books
of the Corporation only upon presentation of the certificate or certificates
representing such shares properly endorsed by the person or persons appearing
upon the face of such certificate to be the owner, or accompanied by a proper
transfer or assignment separate from the certificate, except as may otherwise be
expressly provided by the statutes of the State of Delaware or by order of a
court of competent jurisdiction. The officers or transfer agents of the
Corporation may, in their discretion, require a signature guaranty before making
any transfer. The Corporation shall be entitled to treat the person in whose
name any shares are registered on its books as the owner of those shares for all
purposes and shall not be bound to recognize any equitable or other claim or
interest in the shares on the part of any other person, whether or not the
Corporation shall have notice of such claim or interest.
4. SHARES HELD FOR ACCOUNT OF ANOTHER. The board of directors may adopt
by resolution a procedure whereby a shareholder of the Corporation may certify
in writing to the Corporation that all or a portion of the shares registered in
the name of such shareholder are held for the account of a specified person or
persons. The resolution shall set forth
(a) The classification of shareholders who may certify;
(b) The purpose or purposes for which the certification may be
made;
(c) The form of certification and information to be contained
herein;
(d) If the certification is with respect to a record date or
closing of the stock transfer books, the time after the record date or
the closing of the stock transfer books within which the certification
must be received by the Corporation; and
(e) Such other provisions with respect to the procedure as are
deemed necessary or desirable. Upon receipt by the Corporation of a
certification complying with the procedure, the persons specified in
the certification shall be deemed, for the purpose or purposes set
forth in the certification, to be the holders of record of the number
of shares specified in place of the shareholder making the
certification.
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Article VII
MISCELLANEOUS
1. CORPORATE SEAL. The board of directors may adopt a seal, circular in
form and bearing the name of the Corporation and the words "SEAL" and
"DELAWARE," which, when adopted, shall constitute the seal of the Corporation.
The seal may be used by causing it or a facsimile of it to be impressed,
affixed, manually reproduced, or rubber stamped with indelible ink. Even if the
Corporation has adopted a corporate seal, properly authorized actions of the
Corporation are effective whether or not any writing evidencing such action is
sealed.
2. FISCAL YEAR. The board of directors may, by resolution, adopt a
fiscal year for the Corporation.
3. RECEIPT OF NOTICES BY THE CORPORATION. Notices, shareholder writings
consenting to action, and other documents or writings shall be deemed to have
been received by the Corporation when they are received
(a) At the registered office of the Corporation in the State
of Delaware;
(b) At the principal office of the Corporation (as that office
is designated in the most recent document filed by the Corporation with
the Secretary of State for the State of Delaware designating a
principal office) addressed to the attention of the secretary of the
Corporation;
(c) By the secretary of the corporation wherever the secretary
may be found; or
(d) By any other person authorized from time to time by the
board of directors, the president, or the secretary to receive such
writings, wherever such person is found.
4. FACSIMILE SIGNATURE. Where, under these Bylaws or under the Delaware
General Corporation Law, as amended, a signature of a director, officer or
shareholder of the Corporation is required, such signature may be presented
either in original form or by a facsimile copy thereof, to the extent permitted
by law.
5. AMENDMENT OF BYLAWS. These Bylaws may at any time and from time to
time be amended, supplemented, or repealed by the board of directors.
Duly Adopted December 31, 2010
By: /s/ David J Cutler
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President & Director
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