Registration of Securities of a Small-Business Issuer — Form 10-SB
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10SB12G Form 10-Sb 31 118K
2: EX-2 Plan of Acquisition, Reorganization, Arrangement, 6 23K
Liquidation or Succession
3: EX-3.(I) Articles of Incorporation/Organization or By-Laws 4 17K
4: EX-3.(II) Articles of Incorporation/Organization or By-Laws 22 74K
5: EX-4 Instrument Defining the Rights of Security Holders 1 7K
6: EX-10.1 Material Contract 7 27K
7: EX-10.2 Material Contract 3 14K
8: EX-10.3 Material Contract 4 16K
9: EX-10.4 Material Contract 4 16K
10: EX-10.5 Material Contract 6± 25K
11: EX-21 Subsidiaries of the Registrant 1 6K
12: EX-27 Financial Data Schedule 1 9K
EX-3.(II) — Articles of Incorporation/Organization or By-Laws
| EX-3.(II) | 1st Page of 22 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
|---|
BYLAWS OF
ATM HOLDINGS, INC.
A NEVADA CORPORATION
ARTICLE I
OFFICERS
Section 1. Principal Executive Office. The principal executive office of the
corporation is hereby fixed and located in the State of Nevada at 6550 South
Pecos Road, Las Vegas, Nevada 89120. The Board of Directors of the corporation
(herein called the "Board") is hereby granted full power and authority to change
the principal executive office or the location of any other corporate office
from one location to another. Any such change shall be noted on the Bylaws in
this Section, or this Section may be amended to state the new location.
Section 2. Other Offices. Branch or subordinate offices may, at any time, be
established by the Board at any place or places.
ARTICLE II
SHAREHOLDERS
Section 1. Shareholders of Record. Only shareholders of record on the books of
the corporation shall be entitled to be treated by the corporation as holders in
fact of the shares standing in their respective names, and the corporation shall
not be bound to recognize any equitable or other claim to, or interest in, any
shares on the part of any other person, firm or corporation, whether or not it
shall have express or other notice thereof, except as expressly provided by the
laws of Nevada.
Section 2. Place of Meetings. Meetings of shareholders shall be held either at
the principal executive office of the corporation or at any other place within
or without the State of Nevada which may be designated either by the Board or by
the written consent of all persons entitled to vote thereat, given either before
or after the meeting and filed with the Secretary.
Section 3. Annual Meetings. The annual meetings of shareholders shall be held on
July 15, at 11:00 o'clock a.m., local time, or such other date or such other
time as may be fixed by the Board; provided, however, that should said day fall
upon a Saturday, Sunday, or legal holiday observed by the corporation at its
principal executive office, then any such annual meeting of shareholders shall
be held at the same time and place on the next day thereafter ensuing which is a
full business day. At such meetings directors shall be elected and any other
proper business may be transacted.
1
Section 4. Special Meetings. Special meetings of the shareholders may be called
at any time by the Board, the Chairman of the Board, the President, or by the
holders of shares entitled to cast not less than 10 percent of the votes at such
meeting. Upon request in writing to the Chairman of the Board, the President,
any Vice President or the Secretary by any person entitled to call a special
meeting of shareholders, the officer forthwith shall cause notice to be given in
writing to the shareholders entitled to vote at a meeting will be held at a time
requested by the person or persons calling the meeting, not less than 35 nor
more than 60 days after the receipt of the request. If the notice is not given
within 20 days after receipt of the request, the persons entitled to call the
meeting may give the notice.
Section 5. Notice of Annual or Special Meetings. Written notice of each annual
or special meeting of shareholders shall be given not less than 10 nor more than
60 days before the date of the meeting to each shareholder entitled to vote
thereat. Such notice shall state the place, date, and hour of the meeting and
(a) in the case of a special meeting, the general nature of the business to be
transacted, and no other business may be transacted, or (b) in the case of the
annual meeting, those matters which the Board, at the time of the mailing of the
notice, intends to present for action by the shareholders, but, subject to the
provisions of applicable law, any proper matter may be presented at the meeting
for such action. The notice of any meeting at which directors are to be elected
shall include the names of nominees intended at the time of the notice to be
presented by management for election.
Notice of a shareholders' meeting shall be given either by mail or by
other means of written communication, addressed to the shareholder at the
address of such shareholder appearing on the books of the corporation or given
by the shareholder to the corporation for the purpose of notice, or, if no such
address appears or is given, at the place where the principal executive office
of the corporation is located or by publication at least once in a newspaper of
general circulation in the county in which the principal executive office is
located. Notice by mail shall be deemed to have been given at the time a written
notice is deposited in the United States mails, postage prepaid. Any other
written notice shall be deemed to have been given at the time it is personally
delivered to the recipient or is delivered to a common carrier for transmission,
or actually transmitted by the person giving the notice by electronic means, to
the recipient.
Section 6. Quorum. A majority of the shares entitled to vote, represented in
person or by proxy, shall constitute a quorum at any meeting of shareholders. If
a quorum is present, the affirmative vote of the majority of the shares
represented at the meeting and voting at the meeting (which shares voting
affirmatively also constitute at least a majority of the required quorum) shall
be the act of the shareholders, unless the vote of a greater number or
2
voting by classes is required by law or by the Articles of Incorporation and
except as provided in the following sentence. The shareholders present at a duly
called or held meeting at which a quorum is present may continue to do business
until adjournment, notwithstanding the withdrawal of enough shareholders to
leave less than a quorum, if any action taken (other than adjournment) is
approved by at least a majority of the shares required to constitute a quorum.
Section 7. Adjourned Meetings and Notice Thereof. Any shareholders' meeting,
whether or not a quorum is present, may be adjourned from time to time by the
vote of a majority of the shares, represented either in person or by proxy, but
in the absence of a quorum (except as provided in Section 6 of this Article II)
no other business may be transacted at such meeting.
It shall not be necessary to give any notice of the time and place of
the adjourned meeting or of the business to be transacted thereat, other than by
announcement at the meeting at which such adjournment is taken; provided,
however, when any shareholders' meeting is adjourned for more than 45 days, or
if after adjournment, a new record date is fixed for the adjourned meeting,
notice of the adjourned meeting shall be given as in the case of an original
meeting.
Section 8. Voting. The shareholders entitled to notice of any meeting or to vote
at any such meeting shall be only such persons in whose name shares stand on the
stock records of the corporation on the record date determined in accordance
with Section 9 of this Article II.
Voting shall, in all cases, be subject to the provisions of Chapter 78
of the Nevada Revised Statutes and to the following provisions:
(a) Subject to clause (g), shares held by an administrator, executor,
guardian, conservator or custodian may be voted by such holder either in person
or by proxy, without a transfer of such shares into the holder's name; and
shares standing in the name of a trustee may be voted by the trustee, either in
person or by proxy, but no trustee shall be entitled to vote shares held by such
trustee without a transfer of such shares into the trustee's name.
(b) Shares 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 the receiver's name if authority
to do so is contained in an order of the court by which such receiver was
appointed.
(c) Subject to the provisions of Chapter 78 of the Nevada Revised
Statutes, and except where otherwise agreed in writing between the parties, a
shareholder whose shares are pledged shall
3
be entitled to vote such shares until the shares have been transferred into the
name of the pledgee, and thereafter the pledgee shall be entitled to vote the
shares so transferred.
(d) Shares standing in the name of a minor may be voted and the
corporation may treat all rights incident thereto as exercisable by the minor,
in person or by proxy, whether or not the corporation has notice, actual or
constructive, of the minority, unless a guardian of the minor's property has
been appointed and written notice of such appointment given to the corporation.
(e) Shares standing in the name of another corporation, domestic or
foreign, may be voted by such officer, agent or proxyholder as the bylaws of
such other corporation may prescribe or, in the absence of such provision, as
the Board of Directors of such other corporation may determine or, in the
absence of such determination, by the chairman of the board, president or any
vice president of such other corporation, or by any other person authorized to
do so by the chairman of the board, president or any vice president of such
other corporation. Shares which are purported to be voted or any proxy purported
to be executed in the name of a corporation (whether or not any title of the
person signing is indicated) shall be presumed to be voted or the proxy executed
in accordance with the provisions of this clause, unless evidence to the
contrary is produced.
(f) Shares of the corporation owned by any subsidiary shall not be
entitled to vote on any matter.
(g) Shares held by the corporation in a fiduciary capacity, and shares
of the corporation held in a fiduciary capacity by any subsidiary, shall not be
entitled to vote on any matter, except to the extent that the settlor or
beneficial owner possesses and exercises a right to vote or to give the
corporation binding instruction as to how to vote such shares.
(h) If shares stand of record in the names of two or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in common,
husband and wife as community property, tenants by the entirety, voting
trustees, persons entitled to vote under a shareholder voting agreement or
otherwise, or if two or more persons (including proxyholders) have the same
fiduciary relationship respecting the same shares, unless the Secretary of the
corporation is given written notice to the contrary and is furnished with a copy
of the instrument or order appointing them or creating the relationship wherein
it is so provided, their acts with respect to voting shall have the following
effect:
(i) If only one votes, such act binds all;
(ii) If more than one vote, the act of the majority so voting binds all;
4
(iii) If more than one vote, but the vote is evenly split on any
particular matter, each faction may vote the securities in question
proportionately.
If the instrument so filed or the registration of the shares shows that
any such tenancy is held in unequal interests, a majority or even split for the
purpose of this section shall be a majority or even split in interest.
Elections need not be by ballot; provided, however, that all elections
for director must be by ballot upon demand made by a shareholder at the meeting
and before the voting begins.
In any election of directors, the candidates receiving the highest
number of votes up to the number of directors to be elected shall be elected.
Section 9. Record Date. The Board may fix, in advance, a record date for the
determination of the shareholders entitled to notice of any meeting or to vote,
or entitled to receive payment of any dividend or other distribution, or any
allotment of rights, or to exercise rights in respect to any other lawful
action. The record date so fixed shall be not more than 60 nor less than 10 days
prior to the date of the meeting nor more than 60 days prior to any other
action. When a record date is so fixed, only shareholders of record on that date
are entitled to notice of and to vote at the meeting or to receive the dividend,
distribution, or allotment of rights, or to exercise of the rights, as the case
may be, notwithstanding any transfer of shares on the books of the corporation
after the record date. A determination of shareholders of record entitled to
notice of or to vote at a meeting of shareholders shall apply to any adjournment
of the meeting unless the Board fixes a new record date for the adjourned
meeting. The Board shall fix a new record date if the meeting is adjourned for
more than 45 days.
If no record date is fixed by the Board, the record date for determining
shareholders entitled to notice of or to vote at a meeting of shareholders shall
be at the close of business on the business day next preceding the day on which
notice is given or, if notice is waived, at the close of business of the
business day next preceding the day on which the meeting is held. The record
date for determining shareholders for any purpose other than set forth in this
Section 9 or Section 11 of this Article II shall be at the close of business on
the day on which the Board adopts the resolution relating thereto, or the 60th
day prior to the date of such other action, whichever is later.
Section 10. Voting Record. The officer or agent having charge of the stock
transfer books for shares of the corporation shall make, at least 10 days before
such meeting of shareholders, a complete record of the shareholders entitled to
vote at each meeting of
5
shareholders or any adjournment thereof, arranged in alphabetical order, with
the address of and the number of shares held by each. The record, for a period
of 10 days prior to such meeting, shall be kept on file at the principal
executive office of the corporation, and shall be subject to inspection by any
shareholder for any purpose germane to the meeting at any time during usual
business hours. Such record shall be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any shareholder
during the whole time of the meeting for the purposes thereof. The original
stock transfer books shall be the prima facie evidence as to who are the
shareholders entitled to examine the record or transfer books or to vote at any
meeting of shareholders.
Section 11. Action Without Meeting. As provided in Chapter 78 of the Nevada
Revised Statutes, any action which may be taken by the vote of shareholders at
an annual or special meeting, may be taken at any annual or special meeting of
shareholders, may be taken without a meeting and without prior notice if a
consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding shares having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted. Unless a record date
for voting purposes be fixed as provided in Section 9 of this Article II, the
record date for determining shareholders entitled to give consent pursuant to
this Section 11, when no prior action by the Board has been taken, shall be the
day on which the first written consent is given.
Section 12. Proxies. At any meeting of the shareholders of the corporation any
shareholder may be represented and vote by a proxy or proxies appointed by an
instrument in writing. In the event that any such instrument in writing shall
designate two or more persons to act as proxies, a majority of such persons
present at the meeting, or, if only one shall be present, then that one shall
have and may exercise all of the power conferred by such written instrument upon
all of the persons so designated unless the instrument shall otherwise provide.
No such proxy shall be valid after the expiration of six months from the
date of its execution, unless coupled with an interest, or unless the person
executing it specifies therein the length of time for which it is to continue in
force, which in no case shall exceed one year from the date of its execution.
Subject to the above, any proxy duly executed is not revoked and continues in
full force and effect until an instrument revoking it or a duly executed proxy
bearing a later date is filed with the Secretary of the corporation.
Section 13. Inspectors of Election. In advance of any meeting of shareholders,
the Board may appoint inspectors of election to act at such meeting and any
adjournment thereof. If inspectors of
6
election are not so appointed, or if any person so appointed fails to appear or
refuses to act, the chairman of any such meeting may, and on the request of any
shareholder or shareholder's proxy shall, make such appointment at the meeting.
The number of inspectors shall be at the discretion of the Board. If appointed
at a meeting on the request of one or more shareholders or proxies, the majority
of shares present shall determine how many inspectors are to be appointed.
The duties of such inspectors shall be as prescribed by Chapter 78 of
the Nevada Revised Statutes and shall include: determining the number of shares
outstanding and the voting power of each; determining the shares represented at
the meeting; determining the existence of a quorum; determining the
authenticity, validity, and effect of proxies; receiving votes, ballots, or
consents; hearing and determining all challenges and questions in any way
arising in connection with the right to vote; counting and tabulating all votes
or consents, determining when the polls shall close; determining the result; and
doing such acts as may be proper to conduct the election or vote with fairness
to all shareholders. The decision, act, or certificate of a majority of the
inspectors is effective in all respects as the decision, act, or certificate of
all.
Section 14. Conduct of Meeting. The Chairman of the Board, or if no such office
exists, the President shall preside as chairman at all meetings of the
shareholders. The chairman shall conduct each such meeting in a businesslike and
fair manner, but shall not be obligated to follow any technical, formal or
parliamentary rules or principles of procedure. The chairman's rulings on
procedural matters shall be conclusive and binding on all shareholders, unless,
at the time of a ruling, a request for a vote is made to the shareholders
entitled to vote and represented in person or by proxy at the meeting, in which
case the decision of a majority of such shares shall be conclusive and binding
on all shareholders. Without limiting the generality of the foregoing, the
chairman shall have all of the power usually vested in the chairman of a meeting
of shareholders.
ARTICLE III
DIRECTORS
Section 1. Powers. Subject to limitations of the Articles of Incorporation, of
these Bylaws, and Chapter 78 of the Nevada Revised Statutes relating to action
required to be approved by the shareholders or by the outstanding shares, the
business and affairs of the corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the Board. The Board may
delegate the management of the day-to-day operation of the business of the
corporation to a management company or other person provided that the business
and affairs of the corporation shall be managed and all corporate powers shall
be exercised under the ultimate
7
direction of the Board. Without prejudice to such general powers, but subject to
the same limitations, it is hereby expressly declared that the Board shall have
the following powers in addition to the other powers enumerated in these Bylaws:
(a) To select and remove all the officers, agents, and employees of the
corporation, prescribe the powers and duties for them as may not be inconsistent
with law, the Articles of Incorporation or these Bylaws, fix their compensation,
and require from them security for faithful service.
(b) To conduct, manage, and control the affairs and business of the
corporation and to make such rules and regulations therefor not inconsistent
with law, the Articles of Incorporation or these Bylaws, as they may deem best.
(c) To adopt, make, and use a corporate seal, and to prescribe the forms
of certificates of stock, and to alter the form of such seal and of such
certificates from time to time as they may deem best.
(d) To authorize the issuance of shares of stock of the corporation from
time to time, upon such terms and for such consideration as may be lawful.
(e) To borrow money and incur indebtedness for the purposes of the
corporation, and to cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations, or other evidences of debt and securities therefor.
Section 2. Number and Qualification of Directors. The number of directors of the
corporation shall be not less than three (3) nor more than nine (9) until
changed by amendment of this Section 2 of Article III by a resolution adopted by
the Board provided, however, that an amendment reducing the minimum number of
directors on a fixed numbered Board, or the minimum number of directors on a
variable numbered Board, to a number less than three (3) must be pursuant to
Chapter 78 of the Nevada Revised Statutes, as amended. Until changed as herein
provided, the number of directors of this corporation is hereby fixed at three
(3). The number so fixed may be changed, within the limits specified in this
Section 2, by approval of the Board at a duly held meeting at which a quorum is
present, or by the unanimous written consent of the Board.
Section 3. Election and Term of Office. The directors shall be elected at each
annual meeting of shareholders, but if any such annual meeting is not held or
the directors are not elected thereat, the directors may be elected at any
special meeting of shareholders held for that purpose. Each director shall hold
office until the next annual meeting and until a successor has been elected and
qualified.
8
Section 4. Vacancies. Any director may resign effective upon giving written
notice to the Chairman of the Board, the President, the Secretary, or the Board,
unless the notice specifies a later time for the effectiveness of such
resignation. If the resignation is effective at a future time, a successor may
be elected to take office when the resignation becomes effective.
Vacancies in the Board, except those existing as a result of a removal
of a director, may be filled by a majority of the remaining directors, though
less than a quorum, or by a sole remaining director, and each director so
elected shall hold office until the next annual meeting and until such
director's successor has been elected and qualified.
A vacancy or vacancies in the Board shall be deemed to exist in case of
the death, resignation, or removal of any director, or if the authorized number
of directors be increased, or if the shareholders fail, at any annual or special
meeting of shareholders at which any director or directors are elected, to elect
the full authorized number of directors to be voted for at that meeting.
The shareholders may elect a director or directors at any time to fill
any vacancy or vacancies not filled by the directors. Any such election may be
held at a special meeting of shareholders which is called and held for that
purpose on by action without a meeting as provided for herein.
Any director may be removed from office by the vote or written consent
of stockholders representing not less than two-thirds of the issued and
outstanding capital stock entitled to voting power.
The Board may declare vacant the office of a director who has been
declared of unsound mind by an order of court or convicted of a felony.
No reduction of the authorized number of directors shall have the effect
of removing any director prior to the expiration of the director's term of
office.
Section 5. Place of Meetings. Regular or special meetings of the Board shall be
held at any place within or without the State of Nevada which has been
designated from time to time by the Board. In the absence of such designation,
regular meetings shall be held at the principal executive office of the
corporation.
Section 6. Regular Meetings. Immediately following each annual meeting of
shareholders the Board shall hold a regular meeting for the purpose of the
election of officers and the transaction of other business.
9
Section 7. Special Meetings. Special meetings of the Board for any purpose or
purposes may be called at any time by the Chairman of the Board, the President,
any Vice President, the Secretary, or by any two directors.
Special meetings of the Board shall be held upon four days written
notice or 48 hours notice given personally or by telephone, telegraph, telex, or
other similar means of communication. Any such notice shall be addressed or
delivered to each director at such director's address as it is shown upon the
records of the corporation or as may have been given to the corporation by the
director for purposes of notice or, if such address is not shown on such records
or is not readily ascertainable, at the place in which the meetings of the
directors are regularly held.
Notice by mail shall be deemed to have been given at the time a written
notice is deposited in the United States mails, postage prepaid. Any other
written notice shall be deemed to have been given at the time it is personally
delivered to the recipient or is delivered to a common carrier for transmission,
or actually transmitted by the person giving the notice by electronic means, to
the recipient. Oral notice shall be deemed to have been given at the time it is
communicated, in person or by telephone or wireless, to the recipient or to a
person at the office of the recipient whom the person giving the notice has
reasons to believe will promptly communicate it to the recipient.
Section 8. Quorum. A majority of the authorized number of directors constitutes
a quorum of the Board for the transaction of business, except to adjourn as
hereinafter provided. Every act or decision done or made by a majority of the
directors present at a meeting duly held at which a quorum is present shall be
regarded as the act of the Board, unless a greater number be required by law or
by the Articles of Incorporation. A meeting at which a quorum is initially
present may continue to transact business notwithstanding the withdrawal of
directors, if any action taken is approved by at least a majority of the
required quorum.
Section 9. Participation by Electronic Means. Except as may be otherwise
provided by the Articles of Incorporation or Bylaws, any member of the Board or
any committee designated by such Board may participate in a meeting of the Board
or committee by means of conference telephone or similar communications
equipment by which all persons participating in the meeting can hear each other
at the same time. Such participation shall constitute presence in person at the
meeting.
Section 10. Waiver of Notice. Notice of a meeting need not be given to any
director who signs a waiver of notice or a consent to holding the meeting or an
approval of the minutes thereof, whether before or after the meeting, or who
attends the meeting without protesting, prior thereto or at its commencement,
the lack of
10
notice to such director. All such waivers, consents and approvals shall be filed
with the corporate records or made a part of the minutes of the meeting.
Section 11. Adjournment. A majority of the directors present, whether or not a
quorum is present, may adjourn any directors' meeting to another time and place.
Notice of the time and place of holding an adjourned meeting need not be given
to absent directors if the time and place be fixed at the meeting adjourned,
except as provided in the next sentence. If the meeting is adjourned for more
than 24 hours, notice of any adjournment to another time or place shall be given
prior to the time of the adjourned meeting to the directors who were not present
at the time of the adjournment.
Section 12. Fees and Compensation. Directors and members of committees may
receive such compensation, if any, for their services, and such reimbursement
for expenses, as may be fixed or determined by the Board.
Section 13. Action Without Meeting. Any action required or permitted to be taken
by the Board may be taken without a meeting if all members of the Board shall
individually or collectively consent in writing to such action. Such consent or
consents shall have the same effect as a unanimous vote of the Board and shall
be filed with the minutes of the proceedings of the Board.
Section 14. Rights of Inspection. Every director shall have the absolute right
at any reasonable time to inspect and copy all books, records, and documents of
every kind and to inspect the physical properties of the corporation and also of
its subsidiary corporations, domestic or foreign. Such inspection by a director
may be made in person or by agent or attorney and includes the right to copy and
obtain extracts of all such books, records and documents.
Section 15. Committees. The Board may designate one or more committees, each
consisting of two or more directors, and delegate to such committees any of the
authority of the Board except with respect to:
(a) The approval of any action for which the Nevada Revised Statutes
require shareholders' approval or approval of the outstanding shares;
(b) The filling of vacancies on the Board or in any committee;
(c) The fixing of compensation of the directors for serving on the Board
or on any committee;
(d) The amendment or repeal of bylaws or the adoption of new bylaws;
11
(e) The amendment or repeal of any resolution of the Board which by its
express terms is not so amendable or repealable;
(f) A distribution to the shareholders of the corporation except at a
rate or in a periodic amount or within a price range determined by the Board; or
(g) The appointment of other committees of the Board or the members
thereof.
Any such committee must be designated, and the members or alternate
members thereof appointed, by resolution adopted by a majority of the authorized
number of directors, and any such committee may be designated an Executive
Committee or by such other name as the Board shall specify. Alternate members of
a committee may replace any absent member at any meeting of the committee. The
Board shall have the power to prescribe the manner in which proceedings of any
such committee shall be conducted. In the absence of any such prescription, such
committee shall have the power to prescribe the manner in which its proceedings
shall be conducted. Unless the Board or such committee shall otherwise provide,
the regular and special meetings and other actions of any such committee shall
be governed by the provisions of Section 5, 6 and 7 of this Article III
applicable to meetings and actions of the Board. Minutes shall be kept of each
meeting of each committee.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of the corporation shall be a President, a
Secretary, and a Treasurer. The corporation may also have, at the discretion of
the Board, a Chairman of the Board, one or more Vice-Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers, and such other officers
as may be elected or appointed in accordance with the provisions of Section 3 of
this Article IV.
Section 2. Election. The officers of the corporation, except such officers as
may be elected or appointed in accordance with the provisions of Section 3 or
Section 5 of this Article, shall be chosen annually by, and shall serve at the
pleasure of, the Board and shall hold their respective offices until their
resignation, removal, or other disqualification from service, or until their
respective successors shall be elected.
Section 3. Subordinate Officers. The Board may elect, and may empower the
President to appoint, such other officers as the business of the corporation may
require, each of whom shall hold office for such period, have such authority,
and perform such duties as are provided in these Bylaws or as the Board may from
time to time determine.
12
Section 4. Removal and Resignation. Any officer may be removed at any time,
either with or without cause, by the Board or, by any officer upon whom such
power of removal may be conferred by the Board except in a case of an officer
chosen by the Board. Any such removal shall be subject to the rights, if any, of
the officer under any contract of employment.
Any officer may resign at any time by giving written notice to the
corporation, but without prejudice to the rights, if any, of the corporation
under any contract to which the officer is a party. Any such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 5. Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification, or any other cause shall be filled in the manner
prescribed in these Bylaws for regular election or appointment to such office.
Section 6. Chairman of the Board. The Chairman of the Board, if there shall be
such an officer, shall, if present, preside at all meetings of the Board and
exercise and perform such other powers and duties as may be from time to time
assigned by the Board.
Section 7. President. Subject to such powers, if any, as may be given by the
Board to the Chairman of the Board, if there be such an officer, the President
is the general manager and chief executive officer of the corporation and has,
subject to the control of the Board, general supervision, direction, and control
of the business and officers of the corporation. The President shall preside at
all meetings of the shareholders and, in the absence of the Chairman of the
Board, or if there be none, at all meetings of the Board. The President has the
general powers and duties of management usually vested in the office of
president and general manger of a corporation and such other powers and duties
as may be prescribed by the Board.
Section 8. Vice Presidents. In the absence or disability of the President, the
Vice Presidents in order of their rank as fixed by the Board or, if not ranked,
the Vice President designated by the Board, shall perform all 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 Presidents shall have such
other powers and perform such other duties as from time to time may be
prescribed for them respectively by the Board.
Section 9. Secretary. The Secretary shall keep or cause to be kept, at the
principal executive office and such other place as the Board may order, a book
of minutes of all meetings of shareholders, the Board, and its committees, with
the time and place of holding,
13
whether regular or special and, if special, how authorized, the notice thereof
given, the names of those present at Board and committee meetings, the number of
shares present or represented at shareholders' meetings, and the proceedings
thereof. The Secretary shall keep, or cause to be kept, a copy of the Bylaws of
the corporation at the principal executive office or business office in
accordance with Chapter 78 of the Nevada Revised Statutes.
The Secretary shall keep, or cause to be kept, at the principal
executive office or at the office of the corporation's transfer agent or
registrar, if one be appointed, a share register, or a duplicate share register,
showing the names of the shareholders and their addresses, the number and
classes of shares held by each, the number and date of certificates issued for
the same, and the number and date of cancellation of every certificate
surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all the
meetings of the shareholders and of the Board and of any committees thereof
required by these Bylaws or by law to be given, shall keep the seal of the
corporation in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the Board.
Section 10. Treasurer. The Treasurer is the chief financial officer of the
corporation and shall keep and maintain, or cause to be kept and maintained,
adequate and correct accounts of the properties and business transactions of the
corporation, and shall send or cause to be sent to the shareholders of the
corporation such financial statements and reports as are by law or these Bylaws
required to be sent to them. The books of account shall at all times be open to
inspection by any director.
The Treasurer shall deposit all moneys and other valuables in the name
and to the credit of the corporation with such depositories as may be designated
by the Board. The Treasurer shall disburse the funds of the corporation as may
be ordered by the Board, shall render to the President and directors, whenever
they request it, an account of all transactions as Treasurer and of the
financial condition of the corporation, and shall have such other powers and
perform such other duties as may be prescribed by the Board.
ARTICLE V
DIVIDENDS
Section 1. Subject to the provisions of the Articles of Incorporation and the
laws of the State of Nevada, the Board of Directors may declare dividends
whenever, and in such amounts, as in the Board's opinion the condition of the
affairs of the corporation shall render such advisable.
14
ARTICLE VI
FINANCE
Section 1. Reserve Funds. The Board of Directors, in its discretion, may set
aside from time to time, out of the net profits or earned surplus of the
corporation, such sum or sums as it deems expedient as a reserve fund to meet
contingencies, for equalizing dividends, for maintaining any property of the
corporation, and for any other purpose.
Section 2. Banking. The moneys of the corporation shall be deposited in the name
of the corporation in such bank or banks or trust company or trust companies, as
the Board shall designate, and may be withdrawn only on checks signed in the
name of the corporation by such person or persons as the Board may direct by
appropriate resolution. Notes and commercial paper shall be signed in the name
of the corporation by such officer or officers or agent or agents as shall be
authorized from time to time by the Board by appropriate resolution.
ARTICLE VII
SHARES AND TRANSFER OF SHARES
Section 1. Regulation. The Board may make such rules and regulations as it may
deem appropriate concerning the issuance, transfer and registration of
certificates for shares of the corporation, including the appointment of
transfer agents and registrars.
Section 2. Certificates of Stock. Every holder of shares of the corporation
shall be entitled to have a certificate signed in the name of the corporation by
the President or a Vice President and by the Treasurer or an Assistant Treasurer
or the Secretary or an Assistant Secretary, certifying the number of shares and
the class or series of shares owned by the shareholder. Any or all of the
signatures on the certificate may be facsimile. If any officer, transfer agent,
or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the corporation with the
same effect as if such person were an officer, transfer agent, or registrar at
the date of issue.
Section 3. Lost, Stolen or Destroyed Certificates. Except as provided in this
Section, no new certificate for shares shall be issued in lieu of an old one
unless the latter is surrendered and canceled at the same time. The Board may,
however, if any certificate for shares is alleged to have been lost, stolen or
destroyed, authorize a new certificate in lieu thereof, and the corporation may
require the posting of a bond or other adequate
15
security sufficient to indemnify it against any claim that may be made against
it (including expense or liability) on account of the alleged loss, theft, or
destruction of such certificate or the issuance of such new certificate.
Section 4. Transfer Agent. Unless otherwise specified by the Board by
resolution, the Secretary of the corporation shall act as transfer agent of the
certificates representing the shares of stock of the corporation. The Secretary
shall maintain a stock transfer book, the stubs in which shall set forth among
other things, the names and addresses of the holders of all issued shares of the
corporation, the number of shares held by each, the certificate numbers
representing such shares, the date of issue of the certificates representing
such shares, and whether or not such shares originate from original issue or
from transfer. The names and addresses of the shareholders as they appear on the
stubs of the stock transfer book shall be conclusive evidence as to who are the
shareholders of record and as such entitled to receive notice of the meetings of
shareholders; to vote at such meetings; to examine the list of the shareholders
entitled to vote at meetings; to receive dividends; and to own, enjoy and
exercise any other property or rights deriving from such shares of the
corporation. Each shareholder shall be responsible for notifying the Secretary
in writing of any change in his or her name or address and failure so to do will
relieve the corporation, its directors, officers and agents, from liability for
failure to direct notices or other documents, or pay over or transfer dividends
or other property or rights, to a name or address other than the name and
address appearing on the stub of the stock transfer book.
Section 5. Close of Transfer Book and Record Date. For the purpose of
determining shareholders entitled to notice of or to vote at any meeting of
shareholders, or any adjournment thereof, or entitled to receive payment of any
dividend, or in order to make a determination of shareholders for any other
proper purpose, the Board may provide that the stock transfer books shall be
closed for a stated period, but not to exceed, in any case, 60 days. If the
stock transfer books shall be closed for the purpose of determining shareholders
entitled to notice of, or to vote at a meeting of shareholders, such books shall
be closed for at least ten days immediately preceding such meeting. In lieu of
closing the stock transfer books, the Board may fix in advance a date as the
record date for any such determination of shareholders, such date in any case to
be not more than 60 days and, in case of a meeting of shareholders, not less
than 10 days prior to the date on which the particular action requiring such
determination of shareholders is to be taken. If the stock transfer books are
not closed and no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or shareholders
entitled to receive payment of a dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the Board declaring
such dividend is adopted, as the
16
case may be, shall be the record date for such determination of shareholders.
When determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof.
ARTICLE VIII
OTHER PROVISIONS
Section 1. Inspection of Corporate Records.
(a) A shareholder or shareholders holding at least 15% in the aggregate
of the outstanding voting shares of the corporation, upon five business days
written demand upon the corporation, or any judgment creditor of the
corporation, without prior demand, shall have an absolute right to do any of the
following:
(i) Inspect and copy the record of shareholders' names and
addresses and shareholdings during usual business hours; or
(ii) Obtain from the transfer agent, if any, or custodian of the
records for the corporation, and upon the tender of its usual
charges for such a list (the amount of which charges shall be
stated to the shareholder by the transfer agent upon request), a
list of the shareholders' names and addresses who are entitled to
vote for the election of directors and their shareholdings, as of
the most recent record date for which it has been compiled or as
of a date specified by the shareholder subsequent to the date of
demand; and
(iii) Inspect the books of account and all financial records of
the corporation.
(b) All costs for making extracts or conducting an audit shall be borne
by the shareholder or shareholders exercising his, hers or their rights under
subsection (a) above.
(c) An inspection authorized by section (a) above may be denied to such
stockholder or other person upon such stockholder's refusal to furnish to the
corporation an affidavit that such inspection, extracts or audit is not desired
for any purpose not related to his interest in the corporation as a shareholder
or which is not in the interest of a business or object other than the business
of the corporation and that such stockholder has not at any time sold or offered
for sale or abetted any person in procuring any such record of stockholders for
any such purpose.
17
(d) The record of shareholders shall also be open to inspection and
copying by any shareholder or holder of a voting trust certificate at any time
during usual business hours upon written demand on the corporation, for a
purpose reasonably related to such holder's interest as a shareholder or holder
of a voting trust certificate.
(e) Any inspection and copying under this Article may be made in person
or by agent or attorney.
Section 2. Inspection of Bylaws. The corporation shall keep in its principal
office in the State of Nevada or, if its principal executive office is not in
such State, at its principal business office, the original or a copy of these
Bylaws as amended to date, which shall be open to inspection by shareholders at
all reasonable times during usual office hours. If the principal executive
office of the corporation is outside the State of Nevada and the corporation has
no principal business office in such state, it shall upon the written request of
any shareholder furnish to such shareholder a copy of these Bylaws as amended to
date.
Section 3. Endorsement of Documents; Contracts. Subject to the provisions of
applicable law, any note, mortgage, evidence of indebtedness, contract, share
certificate, conveyance, or other instrument in writing and any assignment or
endorsements thereof executed or entered into between the corporation any other
person, when signed by the Chairman of the Board, the President or any Vice
President, and the Secretary, and Assistant Secretary, the Treasurer or any
Assistant Treasurer of the corporation shall be valid and binding on the
corporation in the absence of actual knowledge on the part of the other person
that the signing officers had no authority to execute the same. Any such
instruments may be signed by any other person or persons and in such manner as
from time to time shall be determined by the Board and, unless so authorized by
the Board, no officer, agent, or employee shall have any power or authority to
bind the corporation by any contract or engagement or to pledge its credit or to
render it liable for any purpose or amount.
Section 4. Representation of Shares of Other Corporations. The President or any
other officer or officers authorized by the Board or the President are each
authorized to vote, represent, and exercise on behalf of the corporation all
rights incident to any and all shares of any other corporation or corporations
standing in the name of the corporation. The authority herein granted may be
exercised either by any such officer in person or by any other person authorized
so to do by proxy or power of attorney duly executed by said officer.
Section 5. Stock Purchase Plans. The corporation may adopt and carry out a stock
purchase plan or agreement or stock option plan or agreement providing for the
issue and sale for such
18
consideration as may be fixed for its unissued shares, or for issued shares
acquired or to be acquired, to one or more of the employees or directors of the
corporation or of a subsidiary or to a trustee on their behalf and for the
payment for such shares in installments or at one time, and may provide for
aiding any such persons in paying for such shares by compensation for services
rendered, promissory notes, or otherwise.
Any such stock purchase plan or agreement or stock option plan or
agreement may include, among other features, the fixing of eligibility for
participation therein, the class and price of shares to be issued or sold under
the plan or agreement, the number of shares which may be subscribed for, method
of payment therefor, the reservation of title until full payment therefore, the
effect of the termination of employment, an option or obligation on the part of
the corporation to repurchase the shares upon termination of employment,
restrictions upon transfer of the shares, the time limits of and termination of
the plan, and any other matters, not in violation of applicable law, as may be
included in the plan as approved or authorized by the Board or any committee of
the Board.
Section 6. Preemptive Rights; Assessments. the Shareholders of the corporation
shall not have preemptive rights with respect to the shares of Common Stock or
any other shares of capital stock of the corporation and the shares of the
corporation shall be non-assessable.
Section 7. Annual List of Officers, Directors and Resident Agent. The
corporation shall, on or before the last day of the month in which the
anniversary date of incorporation occurs in each year, file with the Secretary
of State of Nevada a list of its officers and directors and a designation of its
resident agent within the State of Nevada, certified by the corporation's
President, Secretary or other officer of the corporation, along with the
appropriate filing fee.
The registered agent so designated in the list of officers, directors
and resident agent shall be authorized to accept service of all legal process
and any demand or notice authorized by law to be served upon a corporation in
the manner provided in the Nevada Revised Statutes.
Section 8. Construction and Definitions. Unless the context otherwise requires,
the general provisions, rules of construction, and definitions contained in the
general provisions of Chapter 78 of the Nevada Revised Statutes shall govern the
construction of these Bylaws.
19
ARTICLE IX
INDEMNIFICATION
Section 1. Definitions. For purposes of this Article IX, "agent" includes any
person who is or was a director, officer, employee, or other agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, or other enterprise, or was a
director, officer, employee or agent of a foreign or domestic corporation which
was a predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation; "proceeding" includes any threatened,
pending, or completed action or proceeding, whether civil, criminal,
administrative or investigative; and "expenses" includes, without limitation,
attorney's fees and any expenses of establishing a right to indemnification
under Section 4 or Section 5(c) of this Article IX.
Section 2. Indemnification in Actions by Third Parties. The corporation shall
have the power to indemnify any person who was or is a party or is threatened to
be made a party to any proceeding (other than an action by or in the right of
the corporation) by reason of the fact that such person is or was an agent of
the corporation, against expenses, judgments, fines, settlements, and other
amounts actually and reasonably incurred in connection with such proceeding if
such person acted in good faith and in a manner such person reasonably believed
to be in the best interests of the corporation and, in the case of a criminal
proceeding, had no reasonable cause to believe the conduct of such person was
unlawful. The termination of any proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which the person reasonably believed to be in the best interests of the
corporation or that the person had reasonable cause to believe that the person's
conduct was unlawful.
Section 3. Indemnification in Actions by or in the Right of the Corporation. The
corporation shall have the power to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending, or completed
action 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 an agent of the corporation,
against expenses actually and reasonably incurred by such person in connection
with the defense or settlement of such action if such person acted in good
faith, in a manner such person believed to be in the best interests of the
corporation, and with such care, including reasonable inquiry, as an ordinarily
prudent person in a like position would use under similar circumstances. No
indemnification shall be made under this Section 3 in respect of any claim,
issue, or matter as to which such person shall have been
20
adjudged to be liable to the corporation in the performance of such person's
duty to the corporation, unless and only to the extent that the court in which
such action was brought shall determine upon application that, in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for the expenses which such court shall determine.
Section 4. Indemnification Against Expenses. To the extent that an agent of the
corporation has been successful on the merits in defense of any proceeding
referred to in Sections 2 or 3 of this Article IX or in defense of any claim,
issue or matter therein, the agent shall be indemnified against expenses
actually and reasonably incurred by the agent in connection therewith.
Section 5. Required Determinations. Except as provided in Section 4 of this
Article IX, any indemnification under this Article shall be made by the
corporation only if authorized in the specific case, upon a determination that
indemnification of the agent is proper in the circumstances because the agent
has met the applicable standards of conduct set forth in Sections 2 or 3 of this
Article IX by:
(a) A majority vote of those directors who are not parties to such
proceeding;
(b) Approval of a majority of shareholders, with the Shares owned by the
person to be indemnified not being entitled to vote thereon; or
(c) The court in which such proceeding is or was pending upon
application made by the corporation or the agent or the attorney or other person
rendering services in connection with the defense, whether or not such
application by the agent, attorney, or other person is opposed by the
corporation.
Section 6. Advance of Expenses. Expenses incurred in defending any proceeding
must be advanced by the corporation prior to the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of the agent to repay
such amount unless it shall be determined ultimately that the agent is entitled
to be indemnified as authorized in this Article IX.
Section 7. Other Indemnification. No provision made by the corporation to
indemnify its, or its subsidiary's directors or officers for the defense of any
proceeding, whether contained in the Articles of Incorporation, Bylaws, a
resolution of shareholders or directors, an agreement, or otherwise shall be
valid unless consistent with this Article IX. Nothing contained in this Article
shall affect any right to indemnification to which persons other than such
directors and officers may be entitled by contract or otherwise.
21
| EX-3.(II) | Last Page of 22 | TOC | 1st | Previous | Next | ↓Bottom | Just 22nd |
|---|
Section 8. Forms of Indemnification Not Permitted. No indemnification or advance
shall be made under this Article IX, except as provided in Section 4 or Section
5(c) in any circumstance where it appears:
(a) That it would be inconsistent with a provision of the Articles of
Incorporation, these Bylaws, a resolution of the shareholders or an agreement in
effect at the time of the accrual of the alleged cause of action asserted in the
proceeding in which the expenses were incurred or other amounts were paid, which
prohibits or otherwise limits indemnification; or
(b) That it would be inconsistent with any condition expressly imposed
by a court in approving a settlement.
Section 9. Insurance. The corporation shall have power to purchase and maintain
insurance on behalf of any agent of the corporation against any liability
asserted against or incurred by the agent in such capacity or arising out of the
agent's status as such whether or not the corporation would have the power to
indemnify the agent against such liability under the provisions of this Article
IX.
Section 10. Nonapplicability to Fiduciaries of Employee Benefit Plans. This
Article IX does not apply to any proceeding against any trustee, investment
manager, or other fiduciary of an employee benefit plan in such person's
capacity as such, even though such person may also be an agent of the
corporation as defined in Section 1 of this Article IX.
Section 11. Limitation of Liability and Indemnification of Officers and
Directors. The corporation shall, to the maximum extent currently permitted by
Nevada law, as so amended from time to time, eliminate the personal liability of
its officers and directors for monetary damages for breaches of their duties,
and indemnify such officers and directors against liabilities incurred in their
capacities as such. In the event of a conflict between the provisions of this
Section 11 of this Article IX and any other provisions of these Bylaws, the
provisions of this Section 11 shall prevail.
ARTICLE X
AMENDMENTS
These Bylaws may be amended or repealed either by approval of the
outstanding shares or by the approval of the Board; provided, however, that
after the issuance of shares, a Bylaw specifying or changing a fixed number of
directors or the maximum or minimum number or changing from a fixed to a
variable number of directors or vice versa may only be adopted by approval of
the outstanding shares pursuant to Chapter 78 of the Nevada Revised Statutes.
22
↑Top
Filing Submission 0000950148-98-000655 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Thu., Apr. 25, 7:23:19.1pm ET 