UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 14A
(RULE 14A-101)
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934 (Amendment No. 1)
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement [ ] Confidential, For Use of the
[ ] Definitive Proxy Statement Commission Only (as permitted
[ ] Definitive Additional Materials by Rule 14a-6(e)(2))
[ ] Soliciting Material Pursuant to
Rule 14a-11(c) or Rule 14a-12
XCELMOBILITY INC.
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement, if Other Than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
1) Title of each class of securities to which transaction applies:
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2) Aggregate number of securities to which transaction applies:
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3) Per unit price or other underlying value of transaction computed pursuant
to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was determined):
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4) Proposed maximum aggregate value of transaction:
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5) Total fee paid:
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[ ] Fee paid previously with preliminary materials:
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the form or schedule and the date of its filing.
1) Amount previously paid:
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2) Form, Schedule or Registration Statement No.:
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3) Filing Party:
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4) Date Filed:
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EXPLANATORY NOTE
This revised Preliminary Proxy Statement on Form PRE-14A, amends and restates in
its entirety the Preliminary Proxy Statement on Form PRE-14A filed on March 16,
2011. This revised Preliminary Proxy Statement reflects the Company's new name
"XcelMobility Inc."
XCELMOBILITY INC.
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NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
APRIL [ ], 2011
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A Special Meeting of Shareholders of XcelMobility Inc., a Nevada
corporation, will be held at 8:00 a.m., local time, on April [ ], 2011, at the
offices of Greenberg Traurig, LLP, 1201 K Street, Suite 1100, Sacramento,
California 95814 for the following purposes:
1. To approve the Amended and Restated Bylaws of the Corporation.
2. To transact such other business as may properly come before the special
meeting or any adjournment thereof.
The foregoing items of business are more fully described in the proxy
statement accompanying this notice.
Only shareholders of record at the close of business on March 14, 2011 are
entitled to notice of and to vote at the special meeting or any postponement or
adjustment thereof.
All shareholders are cordially invited to attend the meeting and vote in
person. To assure your representation at the meeting, however, we urge you to
vote by proxy as promptly as possible by mail by following the instructions on
the proxy card. You may vote in person at the meeting even if you have
previously returned a proxy.
Sincerely,
/s/ Jaime Brodeth
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JAIME BRODETH
President
Gold River, California
April [ ], 2011
YOUR VOTE IS IMPORTANT
YOU ARE URGED TO COMPLETE, DATE, SIGN AND PROMPTLY RETURN YOUR PROXY IN THE
ENCLOSED ENVELOPE WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING. IT IS IMPORTANT
THAT YOUR SHARES BE REPRESENTED REGARDLESS OF THE NUMBER YOU OWN. ANY PROXY
GIVEN BY YOU MAY BE REVOKED BY WRITTEN NOTIFICATION TO THE COMPANY'S SECRETARY,
BY FILING A DULY EXECUTED PROXY BEARING A LATER DATE, OR BY ATTENDING THE
SPECIAL MEETING IN PERSON AND VOTING BY BALLOT.
TABLE OF CONTENTS
PAGE
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PROXY STATEMENT: VOTING AND OTHER MATTERS................................... 1
PROPOSAL ONE: PROPOSAL TO AMEND AND RESTATE THE COMPANY'S BYLAWS........... 3
SECURITY OWNERSHIP OF PRINCIPAL SHAREHOLDERS, DIRECTORS, AND OFFICERS....... 5
DEADLINE FOR RECEIPT OF SHAREHOLDER PROPOSALS............................... 6
OTHER MATTERS............................................................... 6
WHERE YOU CAN OBTAIN ADDITIONAL INFORMATION................................. 6
EXHIBIT A: AMENDED AND RESTATED BYLAWS OF XCELMOBILITY INC.
XCELMOBILITY INC.
2377 GOLD MEADOW WAY, SUITE 100
GOLD RIVER, CA 95670
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PROXY STATEMENT
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VOTING AND OTHER MATTERS
GENERAL
The accompanying proxy is solicited on behalf of XcelMobility Inc., a
Nevada corporation ("we," "our," "us," or the "Company"), by our Board of
Directors (the "Board") for use at our Special Meeting of Shareholders to be
held at 8:00 a.m. local time on April [ ], 2011, or at any adjournment thereof,
for the purposes set forth in this proxy statement and in the accompanying
notice. The meeting will be held at the offices of Greenberg Traurig, LLP, 1201
K Street, Suite 1100, Sacramento, California 95814.
These proxy solicitation materials were first distributed on or about April
[ ], 2011 to all shareholders entitled to vote at the meeting. As used in this
Proxy Statement, the terms "we," "us," "our," or the "Company" refer to
XcelMobility Inc.
VOTING SECURITIES AND VOTING RIGHTS
Shareholders of record at the close of business on March 14, 2011 are
entitled to notice of and to vote at the meeting or any postponement or
adjournment thereof. On the record date, there were issued and outstanding
2,200,000 shares of our common stock, par value $0.001 per share. Each holder of
common stock voting at the meeting, either in person or by proxy, may cast one
vote per share of common stock held on all matters to be voted on at the
meeting.
The presence, in person or by proxy, of the holders of a majority of the
total number of shares entitled to vote constitutes a quorum for the transaction
of business at the meeting. Assuming that a quorum is present, the affirmative
vote of a majority of the shares of our common stock represented at the special
meeting and entitled to vote on the subject matter is required to approve the
Amended and Restated Bylaws.
Votes cast by proxy or in person at the meeting will be tabulated by the
election inspectors appointed for the meeting who will determine whether a
quorum is present. The election inspectors will treat abstentions as shares that
are present and entitled to vote for purposes of determining the presence of a
quorum, but as unvoted for purposes of determining the approval of any matter
submitted to the shareholders for a vote. If you are the beneficial owner of
shares held by a broker or other custodian, you may instruct your broker how you
would like your shares voted. If you wish to vote the shares you own
beneficially at the meeting, you must first request and obtain a "legal proxy"
from your broker or other custodian. If you choose not to provide instructions
or a legal proxy, your shares are referred to as "uninstructed shares."
Uninstructed shares will be considered as present but not entitled to vote with
respect to that matter.
VOTING OF PROXIES
When a proxy is properly executed and returned, the shares it represents
will be voted at the meeting as directed. If no specification is indicated, the
shares will be voted (1) for approval of the Amended and Restated Bylaws, and
(2) as the persons specified in the proxy deem advisable on any such other
matters as may come before the special meeting.
REVOCABILITY OF PROXIES
Any person giving a proxy may revoke the proxy at any time before its use
by delivering to us written notice of revocation or a duly executed proxy
bearing a later date or by attending the meeting and voting in person. The
1
written notice of revocation or duly executed proxy bearing a later date should
be addressed to Secretary, XcelMobility Inc., 2377 Gold Meadow Way, Suite 100,
Gold River, CA 95670.
SOLICITATION
This proxy is solicited on behalf of our Board. We will pay for this
solicitation. In addition, we may reimburse brokerage firms and other persons
representing beneficial owners of shares for expenses incurred in forwarding
solicitation materials to such beneficial owners. Proxies also may be solicited
by certain of our directors and officers, personally or by telephone or e-mail,
without additional compensation.
ANNUAL REPORT AND OTHER MATTERS
Our Annual Report on Form 10-K in the fiscal year ended March 31, 2010,
which was made available to shareholders preceding this proxy statement on the
website of the Securities and Exchange Commission, or SEC, located at
WWW.SEC.GOV, contains financial and other information about our company, but is
not incorporated into this proxy statement and is not to be considered a part of
these proxy soliciting materials or subject to Regulations 14A or 14C or to the
liabilities of Section 18 of the Securities Exchange Act of 1934, as amended.
WE WILL PROVIDE, WITHOUT CHARGE, A PRINTED COPY OF OUR ANNUAL REPORT ON
FORM 10-K FOR THE FISCAL YEAR ENDED MARCH 31, 2010 AS FILED WITH THE SEC TO EACH
SHAREHOLDER OF RECORD AS OF THE RECORD DATE THAT REQUESTS A COPY IN WRITING. ANY
EXHIBITS LISTED IN THE FORM 10-K REPORT ALSO WILL BE FURNISHED UPON REQUEST AT
THE ACTUAL EXPENSE INCURRED BY US IN FURNISHING SUCH EXHIBITS. ANY SUCH REQUESTS
SHOULD BE DIRECTED TO OUR COMPANY'S SECRETARY AT OUR EXECUTIVE OFFICES SET FORTH
IN THIS PROXY STATEMENT.
2
PROPOSAL ONE
PROPOSAL TO AMEND AND RESTATE THE COMPANY'S BYLAWS
On March 10, 2011, our Board approved, subject to receiving the approval of
the holders of a majority of our outstanding common stock, the amendment and
restatement of our Bylaws (the "Amended and Restated Bylaws"). Our Board
believes the Amended and Restated Bylaws are in the best interests of the
Company's shareholders as they provide the Company with the flexibility
necessary to carry out its business plan and attract potential strategic
partners.
For example, in the event the Company were to consummate the transactions
contemplated by the Letter of Intent described in the Company's Current Report
on Form 8-K filed on March 9, 2011, the Company's shareholder base would expand,
and to require unanimous shareholder consent for written actions or require
shareholder approval to set the number of Directors, fill Board vacancies or
amend the bylaws would be cumbersome to the Company's operations. The current
proposal to amend and restate the Bylaws is not contingent upon or in
furtherance of the Company's entrance into the proposed transactions as
contemplated in the Letter of Intent; the foregoing reference to the Letter of
Intent is for illustrative purposes only.
The Amended and Restated Bylaws will also be more consistent with Nevada
law as it relates to actions which are permissible by the Board and which do not
customarily require shareholder approval.
Therefore, the Board believes that the Amended and Restated Bylaws will
make the administration of the future operations of the Company more efficient
and provide more flexibility for the management of the Company within the limits
of applicable law, including, allowing the Board to set the number of Directors,
fill vacancies in the Board or amend the bylaws, without the time or expense
required to call for a meeting of shareholders, and providing for a majority,
rather than unanimous, consent of shareholders to take action on a matter in
writing in lieu of a shareholders meeting. The adoption of the Amended and
Restated Bylaws will not alter the directors' fiduciary obligations to the
Company.
The following discussion briefly summarizes the significant differences
between the current Bylaws of the Company (the "Old Bylaws") and the Amended and
Restated Bylaws.
SPECIAL MEETINGS OF STOCKHOLDERS
The Old Bylaws provide that special meetings of the stockholders may be
called by the Board of Directors, the President, or by the holders of not less
than one-tenth (1/10) of all of the shares of the Company entitled to vote at
such meeting. The Amended and Restated Bylaws provide that special meetings of
the stockholders may be called by the majority of the Board of Directors, the
President, or upon the request in writing of stockholders owning a majority in
amount of the entire capital stock of the Company entitled to vote.
PROXY
The Old Bylaws provide that proxies shall not be valid after the expiration
of eleven (11) months of the date thereof, unless provided otherwise in the
proxy. The Amended and Restated Bylaws reduce this period to six (6) months.
ACTION BY SHAREHOLDERS IN LIEU OF MEETING
The Old Bylaws require unanimous written consent in order for the Company's
shareholders to take action without a meeting of shareholders. The Amended and
Restated Bylaws reduce this requirement to provide that shareholders may take
action without a meeting if such action is approved by the written consent of
shareholders holding a majority of the voting power of the Company, thereby
allowing the shareholders to take action by written consent, with the same
approval thresholds as required for meetings, without the necessity of calling a
special meeting.
3
NUMBER OF DIRECTORS
The Old Bylaws provide that the number of directors of the Company shall be
established by resolution of the shareholders of the Company. The Amended and
Restated Bylaws state that the number of directors of the Company shall be
established by resolution of the Board of Directors or shareholders of the
Company.
BOARD VACANCIES
The Old Bylaws require that vacancies on the Board of Directors may be
filled by the affirmative vote of the majority of shareholders of the Company.
The Amended and Restated Bylaws allow vacancies to be filled by either the
affirmative vote of the majority of shareholders or a majority of the remaining
directors, thereby allowing the Company to more timely and efficiently bolster
and complement the current slate of directors with additional qualified persons
whose background and skills will benefit the Company and its operations.
REMOVAL OF DIRECTORS
Under the Old Bylaws, any director may be removed with or without cause by
the vote of holders of a majority of the shares entitled to vote at an election
of directors. The Amended and Restated Bylaws increase this requirement by
providing that any director may be removed from office by the vote of holders of
two-thirds (2/3) of the voting power of the Company.
UNCERTIFICATED SHARES
The Amended and Restated Bylaws include a provision for the issuance of
uncertificated shares, consistent with Nevada Revised Statute Section 78.235.
This provision will allow the Company to issue its authorized stock as
uncertificated shares. There will be no change to the Company's common stock as
a result of its ability to issue uncertificated shares. The Amended and Restated
Bylaws also provide that each registered stockholder shall be entitled to a
stock certificate upon written request to the Company. The Old Bylaws did not
contain a provision relating to uncertificated shares.
INDEMNIFICATION
Although both the Old Bylaws and Amended and Restated Bylaws provide for
the indemnification of directors or officers of the Company to the full extent
permitted by law, the Amended and Restated Bylaws also provide additional detail
with respect to the types of claims for which such individuals may be
indemnified, exceptions to the Company's indemnification requirements, expense
reimbursement, determination that indemnification is proper, and insurance.
AMENDMENT
The Old Bylaws provide that the bylaws may be amended by the vote of a
majority of the shareholders of the Company, while the Amended and Restated
Bylaws state that the bylaws may be amended by shareholders or the Board of
Directors.
The Amended and Restated Bylaws also include administrative and stylistic
changes which have not been detailed herein. The discussion above is qualified
in its entirety by reference to the full text of the Amended and Restated
Bylaws, which are attached hereto as Exhibit A. The Board encourages
shareholders to review Exhibit A in its entirety.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE "FOR" THE APPROVAL OF
THE AMENDED AND RESTATED BYLAWS.
4
SECURITY OWNERSHIP OF PRINCIPAL SHAREHOLDERS, DIRECTORS, AND OFFICERS
The Company has only one class of stock outstanding, its common stock. The
table below sets forth the number and percentage of shares of our common stock
owned as of March 14, 2011, the record date, by the following persons: (i)
shareholders known to us who own 5% or more of our outstanding shares, (ii) each
of our officers and Directors, and (iii) our officers and Directors as a group.
Unless otherwise indicated, each of the shareholders has sole voting and
investment power with respect to the shares beneficially owned.
Name and Address Amount and Nature of Percentage
of Beneficial Owner Beneficial Ownership of Class(1)
------------------- -------------------- -----------
Jaime Brodeth, President and Director 750,000 34%
Unit 3-B,
Torres Building
5115 Malolos Street
Makati City, Philippines
Moses Carlo Supera Paez, Director 750,000 34%
42 San Simon Street
BGY Holy Spirit
Quezon City, Philippines
All Officers and Directors as a Group 1,500,000 68%
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(1) Based on 2,200,000 shares of our common stock outstanding as of March 14,
2011.
CHANGES IN CONTROL
There are no existing arrangements that may result in a change in control
of the Company.
SECURITIES AUTHORIZED FOR ISSUANCE UNDER EQUITY COMPENSATION PLANS
We do not have any equity compensation plans.
5
DEADLINE FOR RECEIPT OF SHAREHOLDER PROPOSALS
Shareholder proposals that are intended to be presented by shareholders at
the special meeting of shareholders must be received by us within the time
periods described below in order to be included in the proxy statement and form
of proxy relating to such meeting. Under rules prescribed by the SEC,
shareholders must follow certain procedures to introduce an item of business a
special meeting of shareholders. In general, to be timely under these rules,
notice of such business related to this special meeting of shareholders must
comply with the requirements in our bylaws and must be received by us at a
reasonable time before we begin to print and mail our proxy materials. We
anticipate mailing definitive proxy materials to shareholders on or about April
[ ], 2011.
Pursuant to Rule 14a-4 under the Exchange Act, we intend to retain
discretionary authority to vote proxies with respect to shareholder proposals
for which the proponent does not seek inclusion of the proposed matter in our
proxy statement for this special meeting, except in circumstances where (i) we
receive reasonable notice of the proposed matter, and (ii) the proponent
complies with the other requirements set forth in Rule 14a-4.
OTHER MATTERS
We know of no other matters to be submitted at the meeting. If any other
matters properly come before the meeting, it is the intention of the persons
named in the enclosed proxy card to vote the shares they represent as the Board
of Directors may recommend.
WHERE YOU CAN OBTAIN ADDITIONAL INFORMATION
We file annual, quarterly, current and other reports and other information
with the SEC. Certain of our SEC filings are available over the Internet at the
SEC's web site at WWW.SEC.GOV. You may also read and copy any document we file
with the SEC at its public reference room by writing to the Public Reference
Room of the SEC at 100 F Street, N.E., Room 1580, Washington, D.C. 20549.
Callers in the United States can also call 1-800-SEC-0330 for further
information on the operations of the public reference facilities.
Dated: April [ ], 2011
6
EXHIBIT A
AMENDED AND RESTATED BYLAWS
OF
XCELMOBILITY INC.
AMENDED AND RESTATED BYLAWS
OF
XCELMOBILITY INC.
ADOPTED MARCH __, 2011
The following are the Amended and Restated Bylaws of XCELMOBILITY INC., a
Nevada corporation:
ARTICLE I. OFFICE
The principal office of the Corporation in the State of Nevada shall be
located at such place as the Board of Directors may from time to time determine.
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. The registered office of the
Corporation as required by the Nevada Corporation Act to be maintained in the
State of Nevada, may be, but is not required to be identical to the principal
office and the address of the registered agent may be changed from time to time
by the Board of Directors.
ARTICLE II. SHAREHOLDERS
SECTION 1. Annual Meeting. The annual meeting of the Shareholders shall be
held between January 1st and December 31st each year, on such date and at such
hour as may be specified in the Notice of Meeting or in a duly executed Waiver
of Notice thereof, 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. If the election of Directors
shall not be held on the day designated herein for any annual meeting of the
Shareholders, or at any adjournment thereof, the Board of Directors shall cause
the election to be held at a special meeting of the Shareholders as soon
thereafter as conveniently may be. Failure to hold the annual meeting within the
above-proscribed time shall not act as forfeiture or grounds for dissolution of
the Corporation.
SECTION 2. Special Meetings. Special meetings of the Shareholders, for any
purpose or purposes, may be called by the Board of Directors, by the holders of
not less than a majority of all the shares of the Corporation entitled to vote
at the meeting, or by the President of the Corporation.
SECTION 3. Place of Meeting. The Board of Directors may designate any
place, either within or without the State of Nevada, unless otherwise prescribed
by statute, as the place of meeting for any annual meeting of Shareholders or
for any special meeting of Shareholders called by the Board of Directors. If no
designation is made by the Board, or if a special meeting is otherwise called,
the place of meeting shall be the principal office of the Corporation in the
State of Nevada. Notwithstanding the first two sentences of this Section, a
Waiver of Notice signed by all Shareholders entitled to vote at a meeting,
whether an annual or special meeting, may designate any place, either within or
without the State of Nevada, unless otherwise prescribed by statute, as the
place of the holding of such meeting.
SECTION 4. Notice of Meeting. Written or printed notice stating the place,
day and hour of the meeting and, in the case of a special meeting, the purpose
or purposes for which the meeting is called, shall be delivered to each
Shareholder of record entitled to vote at such meeting not less than ten (10)
nor more than sixty (60) days before the date of the meeting, either personally
or by first-class mail, by or at the direction of the President, the Secretary,
or the person or persons calling the meeting. If mailed, such notice shall be
deemed to be delivered when deposited in the United States mail addressed to the
Shareholder at his address as it appears on the records of the Corporation, with
the postage thereon prepaid. Notice may be waived in accordance with Article
XII.
SECTION 5. Fixing of Record Date. The Board of Directors may fix a date,
not less than ten (10) nor more than sixty (60) days before the date set for any
meeting of the Shareholders, as the record date as of which the Shareholders of
record entitled to notice of and to vote at such meeting and any adjournment
thereof shall be determined.
SECTION 6. Quorum. A majority of the outstanding shares of the Corporation
entitled to vote, represented in person or by proxy, shall constitute a quorum
at a meeting of the Shareholders. When a meeting is adjourned to another time or
place, it shall not be necessary to give any notice of the adjourned meeting if
the time and place to which the meeting is adjourned are announced at the
meeting at which the adjournment is taken, and any business may be transacted at
the adjourned meeting that might have been transacted at the original date of
the meeting. If, however, after the adjournment, the Board fixes a new record
date for the adjourned meeting, a notice of the adjourned meeting shall be given
in compliance with Section 4 of this article to each Shareholder of record on
the new record date entitled to vote at such meeting. After a quorum has been
established at a Shareholders' meeting, the subsequent withdrawal of
Shareholders, so as to reduce the number of shares entitled to vote at the
meeting below the number required for a quorum, shall not affect the validity of
any action taken at the meeting or any adjournment thereof.
SECTION 7. Proxies. Every Shareholder entitled to vote at a meeting of
shareholders or to express consent or dissent without a meeting, or his duly
authorized attorney-in-fact, may authorize another person or persons to act for
him by proxy. The proxy must be executed in writing by the Shareholder or his
duly authorized attorney-in-fact. Such proxy shall be filed with the Secretary
of the Corporation before or at the time of such meeting or at the time of
expressing such consent or dissent without a meeting. No proxy shall be valid
after the expiration of six (6) months of the date thereof unless provided
otherwise in the proxy.
SECTION 8. Voting of Shares. Each outstanding share of stock shall be
entitled to one (1) vote upon each matter submitted to a vote at a meeting of
the Shareholders. If a quorum is present, the affirmative vote of a majority of
the shares represented at the meeting and entitled to vote on the subject matter
shall be the act of the Shareholders unless a greater number is required by the
Nevada Statutes.
SECTION 9. Voting of Shares by Certain Holders. Shares of stock standing
in the name of another corporation may be voted by the officer, agent or proxy
designated by the Bylaws of the corporate Shareholder or, in the absence of any
applicable bylaw, by such person as the board of directors of the corporate
shareholder may designate. Proof of such designation may be made by presentation
of a certified copy of the bylaws or other instrument of the corporate
Shareholder. In the absence of any such designation or, in the case of
conflicting designation by the corporate Shareholder, the chairman of the board,
the president, any vice president, the secretary, and the treasurer of the
corporate shareholder shall be presumed to possess, in that order, authority to
vote such shares.
Shares of stock held by an administrator, executor, guardian or
conservator may be voted by him, either in person or by proxy, without a
transfer of such shares into his name.
Shares of stock standing in the name of a trustee may be voted by him,
either in person or by proxy, but no trustee shall be entitled to vote shares
held by him without a transfer of such shares into his name.
Shares of stock standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by
such receiver without the transfer thereof into his name, if authority so to do
be contained in an appropriate order of the court by which such receiver was
appointed.
A Shareholder whose shares of stock are pledged shall be entitled to vote
such shares until the shares have been transferred into the name of the pledgee,
and thereafter the pledgee or his nominee shall be entitled to vote the shares
so transferred.
Treasury shares, shares of its own stock owned by another corporation the
majority of the voting stock of which is owned or controlled by it, and shares
of its own stock held by a corporation in a fiduciary capacity shall not be
voted, directly or indirectly, at any meeting and shall not be counted in
determining the total number of outstanding shares at any given time.
SECTION 10. Action Without a Meeting. Any action required by law to be
taken at any meeting of Shareholders of the Corporation or any action which may
be taken at a meeting of Shareholders, may be taken without a meeting, without
prior notice, and without a vote if a written consent thereto is signed by
Shareholders holding at least a majority of the voting power, unless the
provisions of the statutes or of the Articles of Incorporation require a greater
proportion of voting power to authorize such action, in which case, such greater
proportion of written consents shall be required.
In the event that the action to which the shareholder's consent is such as
would have required the filing of a certificate under any other section of the
law if such action had been voted on by shareholders in a meeting thereof, the
certificate filed under such other section shall state that written consent has
been given in accordance with the provisions of Nevada Statutes.
ARTICLE III. BOARD OF DIRECTORS
SECTION 1. General Powers. All 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, the Board of Directors.
SECTION 2. Number, Tenure and Qualification. The number of Directors of
the Corporation shall be established by resolution of the Board of Directors or
the Shareholders from time to time, and may be increased or decreased from time
to time, provided the Corporation shall always have at least one (1) Director.
Each Director shall hold office until the next annual meeting of Shareholders
and until his successor shall have been elected and qualified, or until his
earlier resignation, removal from office, or death. Resignation of Directors
shall be in accordance with Article V hereinafter.
SECTION 3. Removal. Any Director may be removed from office by the vote of
shareholders representing not less than two-thirds (2/3) of the voting power of
the issued and outstanding stock entitled to voting power, except that (i) if
the Articles of Incorporation provide for the election of Directors by
cumulative voting, no director may be removed from office under the provisions
of this section except upon the vote of shareholders owning sufficient shares to
have prevented his election to office in the first instance, and (ii) if the
Articles of Incorporation require the concurrence of a larger percentage of the
stock entitled to voting power in order to remove a Director.
SECTION 4. Regular Meetings. The Board of Directors may provide, by
resolution, the time and place for the holding of regular meetings without other
notice than such resolution.
SECTION 5. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, by the President or by the lesser of
a majority, or two Directors. The person or persons authorized to call special
meetings of the Board of Directors may fix the place for holding any special
meeting of the Board of Directors called by him/them.
SECTION 6. Notice. Notice of any special meeting shall be given at least
forty-eight (48) hours before the meeting by written notice delivered
personally, or by mail, or twenty-four (24) hours by telephone, email or
facsimile. If a notice of meeting is mailed, such notice shall be deemed to be
delivered when deposited in the United States mail so addressed, with postage
thereon prepaid. Any Director may waive notice of any meeting, before or after
the meeting in accordance with Article XII. The attendance of a Director at a
meeting shall constitute a waiver of notice of such meeting and a waiver of any
and all objections to the place of the meeting, the time of the meeting, or the
manner in which it has been called or convened, except when a Director states,
at the beginning of the meeting, any objection to the transaction of business
because the meeting is not lawfully called or convened.
SECTION 7. Quorum. A majority of the number of Directors fixed pursuant to
Section 2 of this Article shall constitute a quorum for the transaction of
business at any meeting of the Board of Directors. A majority of the Directors
present, whether or not a quorum exists, may adjourn any meeting of the Board of
Directors to another time and place. Notice of any such adjourned meeting shall
be given to the Directors who were not present at the time of the adjournment
and, unless the time and place of the adjourned meeting are announced at the
time of the adjournment, to the other Directors.
SECTION 8. Manner of Acting. The act of the majority of the Directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors.
SECTION 9. Vacancies. Any vacancy occurring in the Board of Directors,
including any vacancy created by reason of an increase in the number of
Directors, may be filled by the affirmative vote of a majority of the
Shareholders or a majority of the remaining Directors though less than a quorum.
When one or more Directors shall give notice of their resignation to the Board
of Directors, effective at a future date, the Board of Directors shall have the
power to fill such vacancy or vacancies to take effect when such resignation or
resignations shall become effective. A Director elected to fill a vacancy shall
hold office only until the next election of Directors by the Shareholders, or
until his earlier resignation, removal from office or death.
SECTION 10. Compensation. By resolution of the Board of Directors, the
Directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors, and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as Director. No such
payment shall preclude any Director from serving the Corporation in any other
capacity and receiving compensation therefore.
SECTION 11. Presumption of Assent. A Director of the Corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken, unless
he votes against such action or abstains from voting in respect thereto because
of an asserted conflict of interest.
SECTION 12. Constructive Presence at a Meeting. A member of the Board of
Directors may participate in a meeting of such Board by means of a conference
telephone or similar communications equipment, by means of which all persons
participating in the meeting can hear each other at the same time. Participating
by such means shall constitute presence in person at a meeting.
SECTION 13. Action without a Meeting. Any action required by law to be
taken at any meeting of the Directors of the Corporation or any action which may
be taken at a meeting of the Directors, may be taken without a meeting if a
consent in writing, setting forth the action so to be taken, signed by all of
the Directors, is filed in the minutes of the proceedings of the Board. Such
consent shall have the same effect as a unanimous vote.
ARTICLE IV. OFFICERS
SECTION 1. Number and Qualifications. The officers of the Corporation
shall be the President, a Secretary and a Treasurer, each of whom shall be
elected by the Board of Directors. Such other officers and assistant officers
and agents as may be deemed necessary may be elected or appointed by the Board
of Directors. Any two (2) or more offices may be held by the same person.
SECTION 2. Election and Term of Office. The officers of the Corporation
shall be elected annually by the Board of Directors at the regular meeting of
the Board of Directors held after each annual meeting of the shareholders. If
the election of officers shall not be held at such meeting, such election shall
be held as soon thereafter as conveniently may be. Each officer shall hold
office until his successor shall have been duly elected and shall have qualified
or until his earlier resignation, removal from office or death. Resignation of
officers shall be in accordance with Article V.
SECTION 3. Removal. Any officer or agent elected or appointed by the Board
of Directors may be removed by the Board of Directors with or without cause, but
such removal shall be without prejudice to the contract rights, if any, of the
person so removed. Election or appointment of an officer or agent shall not of
itself create contract rights.
SECTION 4. Vacancies. A vacancy, however occurring, in any office may be
filled by the Board of Directors for the unexpired portion of the term.
SECTION 5. President. The President shall be the principal 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 affairs of
the Corporation. He shall, when present, preside at all meetings of the
Shareholders and of the Board of Directors, unless the Board of Directors has
elected a Chairman of the Board and the Chairman of the Board is present at such
meeting. The President may sign 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 as from time to time may be assigned to him
by the Board of Directors.
SECTION 6. Vice-President. If a Vice-President is elected or appointed, in
the absence of the President or in the event of his death, inability or refusal
to act, the Vice-President shall have 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. The Vice-President shall perform such other duties as from
time to time may be assigned to him by the President or the Board of Directors.
SECTION 7. Secretary. The Secretary shall: (a) keep the minutes of all the
meetings of the shareholders and the Board of Directors 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 and of the seal of the Corporation and see that the seal
of the Corporation is affixed to all documents the execution of which on behalf
of the Corporation under its seal is duly authorized; (d) keep a register of the
post office addresses of each shareholder; (e) have general charge of the stock
transfer books of the Corporation; and (f) in general perform all duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to him by the President or by the Board of Directors.
SECTION 8. Treasurer. The Treasurer shall: (a) have charge and custody of
and be responsible for all funds and securities of the Corporation; receive and
give receipts for moneys due and payable to the Corporation from any source
whatsoever, and deposit all such moneys in the name of the Corporation in such
banks, trust companies or other depositories as shall be selected in accordance
with the provisions of Article VI of these Bylaws; and (b) 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 to him 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 duties in such sum and with such surety
or sureties as the Board of Directors shall determine.
SECTION 9. Salaries. The salaries of the officers shall be fixed from time
to time by the Board of Directors and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a Director of the
Corporation.
SECTION 10. Disqualification of an Officer. If any officer is elected to a
public office or accepts employment that, pursuant to existing law, places
restrictions or limitations upon his continued rendering of service to the
Corporation, then such officer shall no longer be qualified to serve as an
officer to the Corporation and he shall be deemed to have forthwith submitted
his resignation as an officer of the Corporation.
ARTICLE V. RESIGNATIONS
Any Director or Officer of the Corporation may resign at any time by
giving written notice to the Board of Directors, and if there are no Directors
then to all of the Shareholders. Any such resignation shall take effect at the
time specified therein, or, if the time be not specified therein, upon its
acceptance by the party or parties to whom notice is given hereunder.
ARTICLE VI. CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. Contracts. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the Corporation, unless otherwise
restricted by law. Such authority may be general or confined to specific
instances.
SECTION 2. Loans. No loans shall be contracted on behalf of the
Corporation and no evidence of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
SECTION 3. Checks, Drafts, etc. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the Corporation, shall be signed by such officer or officers, agent or agents of
the Corporation and in such manner as shall from time to time be determined by
resolution of the Board of Directors.
SECTION 4. Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositories as the Board of Directors may
select.
ARTICLE VII. CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. Issuance. The interest of each shareholder of the Corporation
may be evidenced, but need not be represented by, a certificate, signed by the
president or a vice president and the treasurer or an assistant treasurer, or
the secretary or an assistant secretary of the Corporation, certifying the
number of shares owned by such shareholder in the Corporation. When the
Corporation is authorized to issue shares of more than one class or more than
one series of any class, there shall be set forth upon the face or back of the
certificate, or the certificate shall have a statement that the Corporation will
furnish to any shareholder upon request and without charge, a full or summary
statement of the voting powers, designations, preferences, limitations,
restrictions, and relative rights of the various classes of stock or series
thereof. If any officer or officers who shall have signed, or whose facsimile
signature or signatures shall have been used on, any such certificate or
certificates shall cease to be such officer or officers of the Corporation,
whether because of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be adopted by the Corporation and be issued and
delivered as though the person or persons who signed such certificate or
certificates, or whose facsimile signature or signatures shall have been used
thereon, had not ceased to be the officer or officers of such Corporation.
SECTION 2. Shares Without Certificates. Unless the Articles of
Incorporation or these Bylaws provide otherwise, the Board of Directors of the
Corporation may authorize the issuance of some or all of the shares of any or
all of its classes or series without certificates. Notwithstanding such
authorization by the Board of Directors, every holder of uncertificated shares
is entitled to receive a certificate that complies with the requirements of the
laws of Nevada, on request to the Corporation. The authorization does not affect
shares already represented by certificates until such certificates are
surrendered to the Corporation. Unless otherwise provided by the laws of Nevada,
the rights and obligations of shareholders are identical whether or not their
shares of stock are represented by certificates.
SECTION 3. Transfer Agent and Registrar. Whenever any certificate is
countersigned or otherwise by a transfer agent or transfer clerk, and by a
registrar, then a facsimile of the signatures of the officers or agents of the
Corporation may be printed or lithographed upon such certificate in lieu of the
actual signatures.
SECTION 4. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost or destroyed. When authorizing such issuance
of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost or destroyed certificate or certificates, or such owner's
legal representative, to advertise the same in such manner as it shall require
and/or 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
certificate alleged to have been lost or destroyed.
ARTICLE VIII. FISCAL YEAR
The fiscal year of the Corporation shall be as determined by the Board of
Directors of the Corporation.
ARTICLE IX. DIVIDENDS
The Board of Directors may from time to time declare, and the Corporation
may pay, dividends on its outstanding shares in the manner and upon the terms
and conditions provided by law and its Articles of Incorporation.
ARTICLE X. INDEMNIFICATION
SECTION 1. The Corporation shall indemnify, to the maximum extent permitted
by the law, any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, except an action by or in the
right of the Corporation, by reason of the fact that such person is or was a
director, officer, employee, or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise,
against expenses, including attorneys' fees, judgments, fines, and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit, or proceeding if such person acted in good faith and in a
manner which such person reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of no lo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which such person reasonably believed to be in or not
opposed to the best interests of the Corporation, and that, with respect to any
criminal action or proceeding, such person had reasonable cause to believe that
his conduct was unlawful.
SECTION 2. The Corporation shall indemnify, to the maximum extent permitted
by the law, any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee, or agent of the Corporation, or
is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust, or
other enterprise against expenses, including attorneys' fees, actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner which
such person reasonably believed to be in or not opposed to the best interests of
the Corporation, but no indemnification shall be made in respect of any claim,
issue or matter as to which such person has been adjudged to be liable for
negligence or misconduct in the performance of such person's duty to the
Corporation unless and only to the extent that the court in which such action or
suit was brought determines upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper.
SECTION 3. To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 1 or Section 2 hereof, or in
defense of any claim, issue or matter therein, such person shall be indemnified
by the Corporation against expenses, including attorneys' fees, actually and
reasonably incurred by such person in connection with such defense.
SECTION 4. Any indemnification under Section 1 and Section 2 hereof, unless
ordered by a court, shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because such person
has met the applicable standard of conduct set forth in Section 1 and Section 2
hereof. Such determination shall be made:
(i) by the shareholders;
(ii) by the Board of Directors by majority vote of a quorum consisting
of Directors who were not parties to such act, suit or proceeding;
(iii) if such a quorum of disinterested Directors so orders, by
independent legal counsel in a written opinion; or
(iv) if such a quorum of disinterested Directors cannot be obtained,
by independent legal counsel in a written opinion.
SECTION 5. Expenses incurred in defending a civil or criminal action, suit
or proceeding may be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding as authorized by the Board of Directors
unless it is ultimately determined that such director, officer, employee or
agent is not entitled to be indemnified by the Corporation as authorized in this
section or as provided by law.
SECTION 6. The indemnification provided by this Section 6:
(i) does not exclude any other rights to which a person seeking
indemnification may be entitled under any bylaw, agreement, vote of
shareholders, or disinterested Directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office; and
(ii) shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
SECTION 7. The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions of this
section.
ARTICLE XI. SEAL
The Board of Directors may provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the Corporation
and the state of incorporation and the words, "Corporate Seal." As an
alternative to an official corporate seal, the signature of the Secretary or
other officer of the Corporation on a facsimile or graphical image of a
corporate seal shall serve as the official "corporate seal" of the Corporation.
ARTICLE XII. WAIVER OF NOTICE
Unless otherwise provided by law, whenever any notice is required to be
given to any Shareholder or Director of the Corporation under the provisions of
these Bylaws or under the provisions of the Articles of Incorporation, a waiver
thereof in writing, or written consent as to the action to be taken for which
the notice was given, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice.
ARTICLE XIII. RULES OF ORDER
Roberts' Rules of Order shall prescribe the rules of conduct for all
meetings of the Corporation so far as not inconsistent with the laws of Nevada,
with the Articles of Incorporation, or with these Bylaws.
ARTICLE XIV. AMENDMENTS
Except as otherwise provided by statute or by the Articles of
Incorporation, these Bylaws may be altered, amended or repealed and new Bylaws
may be adopted by a vote of a majority of the Shareholders, at any annual
Shareholders' meeting or at any special Shareholders' meeting, provided notice
of the proposed change is given in the notice of such meeting or by the Board of
Directors at any regular or special meeting of the Board of Directors. If there
is a proposed change to be taken up at a meeting of the Shareholders, notice of
such meeting must be given under the terms of Article II, Section 4 of these
Bylaws.
ARTICLE XV. PROCEDURE UPON DEATH OR DISQUALIFICATION OF A SOLE SHAREHOLDER
As provided in Article II of the Articles of Incorporation of the
Corporation, the Corporation shall have perpetual existence. Therefore, in the
event of the death or disqualification of a sole Shareholder, then, and in that
event, unless the stock of the deceased or disqualified Shareholder is sold to a
person who is qualified to be a Shareholder of the Corporation pursuant to the
provisions of Section 11 of Article II of these bylaws, the Articles of
Incorporation of the Corporation shall be forthwith amended so that it may
continue on as a general corporation to conduct other business authorized by the
provisions of Nevada Statutes.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the Corporation has caused these Amended and Restated
Bylaws to be executed by its duly authorized officer as of the date first set
forth above.
XCELMOBILITY INC.
By:
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Name:
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Title:
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XcelMobility Inc. VOTE BY MAIL
2377 Gold Meadow Way, Suite 100 Mark, sign and date your proxy card
Gold River, California 95670 and return it in the postage-paid
envelope we have provided or return
it to:
Kamyar Daneshvar
Greenberg Traurig, LLP
1201 K Street
Suite 1100
Sacramento, CA 95814-3938
USA
TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
KEEP THIS PORTION FOR YOUR RECORDS
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DETACH AND RETURN THIS PORTION ONLY
THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
XCELMOBILITY INC.
The Board of Directors recommends a vote "for" each proposal.
For Against Abstain
1. To amend and restate our bylaws. [ ] [ ] [ ]
2. And upon such other matters that may properly come before the special meeting
or any adjournment or adjournments thereof.
THIS PROXY WILL BE VOTED AS DIRECTED OR, IF NO CONTRARY DIRECTION IS
INDICATED, FOR EACH PROPOSAL SET FORTH ABOVE, AND AS SAID PROXIES DEEM ADVISABLE
ON SUCH OTHER MATTERS AS MAY COME BEFORE THE MEETING.
A majority of such attorneys or substitutes as shall be present and shall
act at said meeting or any adjournment or adjournments thereof (or if only one
shall be present and act, then that one) shall have and may exercise all of the
powers of said attorneys-in-fact hereunder.
For address changes and/or comments, [ ]
please check this box and write them on
the back where indicated.
Yes No
Please indicate if you plan to attend [ ] [ ]
this meeting.
NOTE: Please sign exactly as your name or names appear on this Proxy. When
shares are held jointly, each holder should sign. When signing as executor,
administrator, attorney, trustee or guardian, please give full title as such. If
the signer is a corporation, please sign full corporate name by duly authorized
officer, giving full title as such. If signer is a partnership, please sign in
partnership name by authorized person.
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Signature Date Signature (Joint Owners) Date
[PLEASE SIGN WITHIN BOX]
SPECIAL MEETING OF SHAREHOLDERS OF
XCELMOBILITY INC.
APRIL [ ], 2011
PLEASE DATE, SIGN AND MAIL YOUR PROXY CARD IN THE ENVELOPE PROVIDED
AS SOON AS POSSIBLE.
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THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS.
XCELMOBILITY INC.
SPECIAL MEETING OF SHAREHOLDERS
The undersigned shareholder of XCELMOBILITY INC., a Nevada corporation,
hereby acknowledges receipt of the notice of special meeting of shareholders and
proxy statement, each dated April [ ], 2011, and hereby appoints Jaime Brodeth,
proxy and attorney-in-fact, with full power of substitution, on behalf and in
the name of the undersigned, to represent the undersigned at the Special Meeting
of Shareholders of XCELMOBILITY INC., to be held on April [ ], 2011, at 8:00
a.m., local time, at 1201 K Street, Suite 1100, Sacramento, California 95814,
and at any postponement, adjournment or adjournments thereof, and to vote all
shares of common stock which the undersigned would be entitled to vote if then
and there personally present on the matters set forth on the reverse side of
this proxy card.
FOR EACH OF THE MATTERS SET FORTH ON THE REVERSE SIDE, THE BOARD OF DIRECTORS
RECOMMENDS A VOTE "FOR" THE MATTER SUBMITTED. PLEASE SIGN, DATE, AND RETURN
PROMPTLY IN THE ENCLOSED ENVELOPE.
Address
Changes/Comments:
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(If you noted any Address Changes/Comments above, please mark corresponding box
on the reverse side.)
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