of
the
Securities Exchange Act of 1934 (Amendment No.
)
Check
the
appropriate box:
¨ Preliminary
Information Statement
¨ Confidential,
for use of the Commission only (as permitted by Rule 14c-5(d)(21))
x Definitive
Information Statement
Bio
Solutions Manufacturing, Inc.
(Name
of Registrant as Specified In Its
Charter)
Payment
of Filing Fee (Check the appropriate box):
x No
fee
required
¨ Fee
computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
1)
Title
of each class of securities to which transaction
applies:
2)
Aggregate
number of securities to which transaction applies:
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
is
calculated and state how it was determined.):
4)
Proposed
maximum aggregate value of transaction:
5)
Total Fee Paid:
¨ 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.
You
are
cordially invited to attend a Special Meeting of Shareholders of Inform Bio
Solutions Manufacturing, Inc. The Special Meeting will be held October 24,2008,
at 4440 Arville, Street, Suite 6, Las Vegas, NV89103. The meeting will convene
at 10:00 a.m. Pacific Time for the following purposes:
1.
For
approval of a change of our domicile from New York to Nevada by means
of a
merger of Bio Solutions, Manufacturing, Inc, a New York corporation
with
and into our wholly owned subsidiary Bio Solutions Manufacturing,
Inc., a
Nevada corporation, which change shall include, among other things,
a
change in our authorized capital, a change in our articles of
incorporation, and a change in our bylaws. These actions are hereinafter
sometimes referred to as the
“Reincorporation”;
2.
To
authorize our board of directors to change our name to a name to
be
determined by our board of directors;
and
3.
For
the transaction of such other business as may properly come before
this
meeting.
Shareholders
of record at the close of business on August 28, 2008 are entitled to vote
at
the meeting. For the reasons set forth in the information statement included
with this notice, your board of directors unanimously believes that the proposed
change of domicile is in the best interests of Bio Solutions Manufacturing,
Inc.
and all of our shareholders.
We
appreciate your continued interest in Bio Solutions Manufacturing,
Inc.
/s/
David Bennett
David
Bennett
President
WE
ARE NOT ASKING YOU FOR A PROXY AND YOU
ARE
REQUESTED NOT TO SEND US A PROXY.
BIO
SOLUTIONS MANUFACTURING, INC.
INFORMATION
STATEMENT
INFORMATION
CONCERNING THE SPECIAL
MEETING
Date
and Purpose of Meeting
This
information statement is furnished in connection with matters to be voted
on at
the Special Meeting of Shareholders of Bio Solutions Manufacturing, Inc.,
to be
held at 10:00 a.m. (PST), on October 24, 2008, at 4440 Arville Street,
Suite 6, Las Vegas, Nevada, 89103 and at any and all adjournments thereof
with
respect to the matters referred to in the accompanying notice. This information
statement is first being mailed to shareholders on or about September 19,2008.
The
purpose of the special meeting is to (i) approve a change of our domicile from
New York to Nevada by means of a merger of Bio Solutions, Manufacturing, Inc,
a
New York corporation with and into our wholly owned subsidiary Bio Solutions
Manufacturing, Inc. a Nevada corporation, which change shall include, among
other things, a change in our authorized capital, a change in our articles
of
incorporation, and a change in our bylaws. These actions are hereinafter
sometimes referred to as the “Reincorporation;” and (ii) to authorize our board
of directors to change our name to a name to be determined by our board of
directors.
Shareholders
Entitled to Vote
Approval
of the matters described herein requires the written consent of the holders
of
outstanding stock of each voting group entitled to vote on such matters. As
of
August 28, 2008, there were 89,078,228 shares of our common stock outstanding
and 10,000 shares of our series A preferred stock outstanding. Holders of our
common stock are entitled to one vote per share. The voting rights of the series
A preferred stock are set forth below.
For
the
actions described herein, the series A preferred stock vote together with the
holders of common stock as a single class. Pursuant to the articles of amendment
to articles of incorporation establishing the series A preferred stock, on
all
matters submitted to a vote of the holders of the common stock, including,
without limitation, the election of directors, a holder of shares of the series
A preferred stock shall be entitled to the number of votes on such matters
equal
to the product of (a) the number of shares of the series A preferred stock
held
by such holder, (b) the number of issued and outstanding shares of our common
stock on a fully diluted basis, as of the record date for the vote, or, if
no
such record date is established, as of the date such vote is taken or any
written consent of stockholders is solicited, and (c) 0.0002.
Our
series A preferred stock is not convertible. However, we have $899,507 on
outstanding convertible notes (including accrued interest), convertible into
our
common stock based on a discount to our market price. As of August 28, 2008,
these notes were convertible into 899,507,000 shares of our common stock. In
addition, there 6,750,000 outstanding options and warrants on August 28, 2008.
Thus, the series A preferred stock is entitled to 1,812,514,000 votes.
Accordingly,
there are 1,901,592,228 votes outstanding voting together as a single class.
Shareholders of record at the close of business on August 28, 2008, will be
entitled to receive this notice and information statement.
Proxies
No
proxies are being solicited.
1
Votes
Required
The
Reincorporation and all other matters at the special meeting require the consent
requires the consent of the holders of a majority of the shares of common stock
and series A preferred stock voting together as a single class.
Patricia
M. Spreitzer, the holder of all of our series A preferred stock, who holds
voting power consisting of 1,813,014,000 votes, or approximately 95% of all
outstanding votes, intends to approve the Reincorporation at the special meeting
of stockholders. For a detailed breakdown of Ms. Spreitzer’s holdings please see
“COMMON STOCK OUTSTANDING AND CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT.”
Information
Statement Costs
The
cost
of delivering this information statement, including the preparation, assembly
and mailing of the information statement, as well as the cost of forwarding
this
material to the beneficial owners of our capital stock will be borne by us.
We
may reimburse brokerage firms and others for expenses in forwarding information
statement materials to the beneficial owners of our capital stock.
No
Dissenters’ Rights
Stockholders
have no appraisal or dissenter’s rights with respect to any of the actions
described in this information statement.
Householding
of Information Statement
Some
banks, brokers and other nominee record holders may be participating in the
practice of “householding” information statements. This means that only one copy
of our information statement may have been sent to multiple stockholders in
each
household. We will promptly deliver a separate copy of either document to any
stockholder upon written or oral request to Bio Solutions Manufacturing, Inc.,
4440 Arville Street, Suite 6, Las Vegas, Nevada89103, (702) 222-9532. Any
stockholder who wants to receive separate copies of our information statement
in
the future, or any stockholder who is receiving multiple copies and would like
to receive only one copy per household, should contact the stockholder’s bank,
broker, or other nominee record holder, or the stockholder may contact us at
the
above address.
2
COMMON
STOCK OWNERSHIP OF CERTAIN
BENEFICIAL
OWNERS AND MANAGEMENT
The
following table sets forth certain information regarding the beneficial
ownership of our common stock as of August 28, 2008 by the following
persons:
· each
person who is known to be the beneficial owner of more than five percent (5%)
of
our issued and outstanding shares of common stock;
· each
of
our directors and executive officers; and
· all
of
our directors and executive officers as a group.
Beneficial
ownership is determined in accordance with the rules and regulations of the
SEC.
The number of shares and the percentage beneficially owned by each individual
listed above include shares that are subject to options held by that individual
that are immediately exercisable or exercisable within 60 days from August28,2008, and the number of shares and the percentage beneficially owned by all
officers and directors as a group includes shares subject to options held by
all
officers and directors as a group that are immediately exercisable or
exercisable within 60 days from August 28, 2008.
Name
And Address (1)
Number Of Common
Shares Beneficially
Owned
Percentage Owned (2)
Percentage of Total Voting
Power (3)
David
Bennett
335,000
*
*
Patricia
M. Spreitzer
550,000
*
95,3
All
directors and
officers
as a group (2 persons)
885,000
*
95.3
(1)
Unless
otherwise noted, the address is 4440 Arville Street, Suite 6, LasVegas,
Nevada89103.
(2)
Based
on 89,078,228 common shares and 10,000 shares of series A preferred
stock
issued and outstanding.
(3)
Holders
of our common stock are entitled to one vote per share, for a total
of
89,078,228 votes. Holders of our series A preferred stock are entitled
to
the number of votes on such matters equal to the product of (a) the
number
of shares of the series A preferred stock held by such holder, (b)
the
number of issued and outstanding shares of the Company’s common stock, on
a fully-diluted basis, as of the record date for the vote, or, if
no such
record date is established, as of the date such vote is taken or
any
written consent of stockholders is solicited, and (c) 0.0002, for
a total
of 1,812,514,000 votes.
On
July11, 2008, our board of directors unanimously approved the Reincorporation.
Patricia M. Spreitzer, our controlling stockholder intends to approve the
Reincorporation at the special meeting of stockholders. We currently have a
wholly-owned Nevada subsidiary named “Bio Solutions Manufacturing, Inc.” which
we refer to as “Bio Solutions Nevada” in this information statement. We will use
the term “Bio Solutions New York” to refer to our existing New York corporation.
The Reincorporation will be effected by a merger transaction in which Bio
Solutions New York will be merged with and into Bio Solutions Nevada.
Bio
Solutions Nevada was incorporated on May 1, 2003 and become our wholly owned
subsidiary on February 17, 2004.
The
Reincorporation and the merger of Bio Solutions New York into Bio Solutions
Nevada will not result in a change in the name of the company. Nor will the
merger result in any change to the business, management, location of the
principal executive offices or other facilities, capitalization, assets or
liabilities of the company. Bio Solutions New York’s employee benefit
arrangements, if any, will be continued by Bio Solutions Nevada upon the same
terms and subject to the same conditions. In management’s judgment, no presently
contemplated activities of the company will be either favorably or unfavorably
affected in any material respect by the Reincorporation. As shareholders of
our
company, however, you should be aware that the corporation law of Nevada and
the
corporation law of New York differ in a number of significant respects,
including differences pertaining to the rights of shareholders. We encourage
you
to carefully review the discussion of some of these differences under the
heading “Comparison of the Corporation Laws of New York and
Nevada.”
Pursuant
to the merger, each issued and outstanding share Bio Solutions New York will
be
automatically converted into and become one share of stock of Bio Solutions
Nevada. Upon completion of the merger, Bio Solutions, as a corporate entity,
will cease to exist, and Bio Solutions Nevada will continue to operate the
business of the company. Share certificates representing each one (1) shares
of
issued and outstanding share of common of Bio Solutions will be automatically
converted into and become one (1) share of common stock of Bio Solutions Nevada.
In addition, each issued and outstanding share of Bio Solutions New York Series
A Preferred Stock will be automatically converted into and will become one
(1)
share of Series A Preferred Stock of Bio Solutions Nevada.
It
will not be necessary for shareholders to exchange their existing stock
certificates for stock certificates of Bio Solutions
Nevada.
A copy
of the Agreement and Plan of Merger, which we refer to as the “merger agreement”
in this information statement, is attached to this information statement as
Appendix A.
In
addition, pursuant to the Reincorporation, we will increase Bio Solutions New
York’s authorized capital to 1,010,000,000 shares of which 1,000,000,000 shares
will be authorized as common stock with $.0001 par value per share, and
10,000,000 shares will be authorized as undesignated preferred stock with $.0001
par value per share. We will also amend Bio Solutions’ Articles of
Incorporation; and bylaws.
We
are
currently governed by the New York Business Corporation Law and our current
articles of incorporation and bylaws. If the Reincorporation is approved, we
will be governed by Title 7 of the Revised Nevada Statues and by new Articles
of
Incorporation and bylaws, which will result in certain changes in the rights
of
our shareholders as discussed below. Copies of the Articles of Incorporation
and
bylaws of Bio Solutions Nevada are attached to this information statement as
Appendices B and C, respectively.
4
The
Reincorporation will allow us to take advantage of certain provisions of the
corporate laws of Nevada. The purposes and effects of the proposed transaction
are summarized below.
The
following is a summary of the Reincorporation. Because it is a summary, it
does
not include all of the information regarding the Reincorporation and is
therefore qualified in its entirety by reference to the merger agreement, the
Articles of Incorporation of Bio Solutions Nevada and the bylaws of Bio
Solutions Nevada attached to this information statement as Appendices A, B,
and
C, respectively.
Treatment
of Stock Options and Warrants
Each
option and warrant to purchase shares of common stock or preferred stock of
Bio
Solutions New York outstanding immediately prior to the effective time of the
reincorporation will, by virtue of the reincorporation and without any action
on
the part of the holder thereof, be converted into and become an option or
warrant to purchase, upon the same terms and conditions, the same number of
shares of Bio Solutions Nevada common stock. The exercise price per share of
each of the options and warrants will be equal to the exercise price per share
immediately prior to the effective time of the reincorporation.
Directors
and Officers
The
directors and officers of Bio Solutions New York will be the directors and
officers of Bio Solutions Nevada after the Reincorporation. Currently, Mr.
David
Bennett is our Chief Executive Officer, President and director while Patricia
Spreitzer serves as our Treasurer, Secretary and director. Mr. Bennett and
Ms.
Spreitzer are our sole officers and directors
Effective
Time of Reincorporation
Subject
to the terms and conditions of the merger agreement, we intend to file, as
soon
as practicable on or after the special meeting of shareholders, appropriate
articles or certificates of merger with the Secretary of State of New York
and
the Secretary of State of Nevada. The Reincorporation will become effective
at
the time the last of such filings is completed. It is presently contemplated
that such filings will be made in first week of October, 2008. However, the
merger agreement provides that the merger may be abandoned by the Board of
Directors prior to the effective time. In addition, the merger agreement may
be
amended prior to the effective time, unless the amendment would, in the judgment
of the board of directors, have a material adverse effect on your rights as
shareholders or in any manner violate applicable law.
Exchange
of Stock Certificates
On
or
after the effective time of the Reincorporation, all of the outstanding
certificates that, prior to that time, represented shares of common stock of
Bio
Solutions New York will be deemed for all purposes to evidence ownership and
to
represent the same number of shares of common stock, of Bio Solutions Nevada
into which such shares are converted in the Reincorporation (other than shares
as to which the holder thereof has properly exercised dissenters’ rights under
New York law). The registered owner of any such outstanding stock certificate
will, until such certificate will have been surrendered for transfer or
conversion or otherwise accounted for to Bio Solutions Nevada, have and be
entitled to exercise any voting and other rights with respect to, and to receive
any dividend or other distributions upon, the shares of common stock of Bio
Solutions Nevada evidenced by such outstanding certificate. After the effective
time of the Reincorporation, whenever certificates which formerly represented
shares of Bio Solutions New York are presented for transfer or conversion,
Bio
Solutions Nevada will cause to be issued in respect thereof a certificate or
certificates representing the appropriate number of shares of common stock
of
Bio Solutions Nevada.
5
Shares
of
Bio Solutions Nevada’s common stock will be traded on the OTC Bulletin Board,
where shares of Bio Solutions New York’s common stock are presently traded.
You
are not required to exchange your stock certificates for Bio Solutions Nevada
stock certificates, although you may do so if you wish.
Principal
Reasons for Changing Our State of Incorporation
The
board
of directors believes that the Reincorporation of our company under the laws
of
the State of Nevada will provide flexibility for both our management and
business. For many years, Nevada has followed a policy of encouraging
incorporation in Nevada and, in furtherance of that policy, has adopted
comprehensive, modern and flexible corporate laws that are periodically updated
and revised to meet changing business needs. As a result, many major
corporations have initially chosen Nevada for their domicile or have
subsequently reincorporated in Nevada in a manner similar to what we have
proposed. Because of Nevada’s significance as the state of incorporation for
many major corporations, the Nevada judiciary has become particularly familiar
with matters of corporate law, and a substantial body of court decisions has
developed construing Nevada’s corporation laws. As a result, Nevada corporate
law has been, and is likely to continue to be, interpreted and explained in
a
number of significant court decisions, a circumstance which will provide greater
predictability with respect to our legal affairs.
In
addition, our current executive offices are located in Nevada and our officers
and directors are based in Nevada. Further, our corporate counsel in based
on
the West coast and as a result are more familiar with the corporate laws of
the
State of Nevada.
Effects
of Reincorporation in Nevada
Change
in Authorized Capital
At
present, the company’s articles of incorporation, as amended, authorize the
issuance of 100,000,000 shares of common stock, par value $0.001 per share
and
10,000,000 shares of preferred stock, $0.001 per share,. The Articles of
Incorporation of Bio Solutions Nevada authorizes the issuance of 1,010,000,000
shares, of which 1,000,000,000 shares will be designated as common stock,
$.00001 par value, and 10,000,000 shares will be undesignated preferred stock,
$.00001 par value. The Articles of Incorporation of Bio Solutions Nevada
provides that the preferred stock may be issued in one or more series, that
Bio
Solutions Nevada’s board of directors is authorized to fix the number of shares
of any series of preferred stock to determine the designation of such series,
and to determine the rights, preferences, privileges, and restrictions granted
to or imposed upon any wholly unissued series of preferred stock.
Description
of common stock
All
outstanding shares of Bio Solutions New York’s common stock are fully paid and
nonassessable. Each share of the outstanding Bio Solutions New York’s common
stock is entitled to participate equally in dividends as and when declared
by
the board of directors and is entitled to participate equally in any
distribution of net assets made to the shareholders upon liquidation of the
company. There are no redemption, sinking fund, conversion or preemptive rights
with respect to the Bio Solutions New York’s common stock. The holders of the
Bio Solutions New York’s common stock are entitled to one vote for each share
held of record on all matters voted upon by shareholders and may not cumulate
votes for the election of directors. The company has not declared or paid any
cash dividends on its common stock since its inception and does not intend
to
pay any dividends for the foreseeable future. Under the terms of the merger
agreement, each outstanding shares of Bio Solutions New York common stock will
convert to one (1) share of Bio Solutions Nevada common stock, and the shares
of
Bio Solutions Nevada common stock will also possess the characteristics of
the
Bio Solutions New York common stock that are described in this
paragraph.
6
Description
of preferred stock
The
Articles of Incorporation of Bio Solutions Nevada authorizes the issuance of
10,000,000 shares of undesignated preferred stock. The Preferred Stock may
be
issued from time to time in one or more series. The board of directors is
authorized to fix the number of shares of any series of Preferred Stock, to
determine the designation of any such series and to determine or alter the
rights, preferences, privileges, qualifications, limitations and restrictions
granted to or imposed upon any wholly unissued series of Preferred Stock and,
within the limits and restrictions stated in any resolution or resolutions
of
the board of directors originally fixing the number of shares constituting
any
series, to increase or decrease (but not below the number of shares of such
series then outstanding) the number of shares of any such series subsequent
to
the issue of shares of that series.
Series
A Preferred Stock
Bio
Solutions Nevada has designated 10,000 shares of its preferred stock as series
A
preferred stock. The Bio Solutions Nevada series A preferred stock has the
same
terms and conditions as the Bio Solutions New York series A preferred stock.
The
series A preferred stock has preferred voting rights only
and does
not have any preferential dividend, liquidation, redemption or conversion
rights. Holders of our series A preferred stock are entitled to the number
of
votes on such matters equal to the product of (a) the number of shares of the
series A preferred stock held by such holder, (b) the number of issued and
outstanding shares of the Company’s common stock, on a fully-diluted basis, as
of the record date for the vote, or, if no such record date is established,
as
of the date such vote is taken or any written consent of stockholders is
solicited, and (c) 0.0002.
Outstanding
Shares of Stock
As
of
August 28, 2008, 89,078,228 shares of Bio Solutions New York’s common stock were
issued and outstanding and 10,000 shares of Bio Solutions New York’s series A
preferred stock were issued and outstanding.
Articles
of Incorporation and Bylaws to be in Effect After the
Reincorporation
Following
the Reincorporation, we will be subject to the Articles of Incorporation and
bylaws of Bio Solutions Nevada. A copy of the Articles of Incorporation of
Bio
Solutions Nevada are attached to this proxy statement as Appendix B, and a
copy
of the bylaws of Bio Solutions Nevada is attached to this proxy statement as
Appendix C. The Articles of Incorporation attached as Appendix B are similar
to
Bio Solutions New York’s articles of incorporation. Approval of the
Reincorporation by our shareholders will automatically result in the adoption
of
the Articles of Incorporation and bylaws of Bio Solutions Nevada.
Comparison
of the Corporation Laws of New York and Nevada
The
rights and preferences of our shareholders are presently governed by the New
York Business Corporation Law. Upon the Reincorporation of our company and
the
rights and preferences of our shareholders will be governed by Nevada general
corporation law. Although Nevada and New York corporation laws currently in
effect are similar in many respects, certain differences will affect the rights
of our shareholders if the Reincorporation is completed. The following
discussion summarizes the primary differences considered by management to be
significant and is qualified in its entirety by reference to the full text
of
the New York Business Corporation Law and Nevada general corporation
law.
7
Shareholder
Voting
Under
New
York law, the Reincorporation, must be approved by the affirmative vote of
at
least: a majority of the votes entitled to be cast by outstanding shares of
entitled to vote.
Under
Nevada law, action on certain matters, including the sale, lease or exchange
of
all or substantially all of the corporation’s property or assets other than in
the usual and regular course of business, mergers and consolidations, and
voluntary dissolution, must be approved by the holders of a majority of the
outstanding shares.
In
addition, both states’ laws provide that the articles of incorporation may
provide for a supermajority of the voting power of the outstanding shares to
approve such extraordinary corporate transactions. Neither Bio Solutions’
articles of incorporation nor Bio Solutions Nevada’s Articles of Incorporation
contain any supermajority voting provisions.
Appraisal
Rights in Connection with Corporate Reorganizations and Other Actions
Under
New
York law and Nevada law, shareholders have the right, in some circumstances,
to
dissent from certain corporate transactions by demanding payment in cash for
their shares equal to the fair value of the shares as determined by the
corporation or by a court in the event a dissenting shareholder does not agree
with the fair value established by the corporation.
Under
New
York law, a shareholder is entitled to receive payment of the fair value of
his
shares, in the following cases: (1) any shareholder entitled to vote who does
not assent to the taking of the following actions (A) any plan of merger or
consolidation to which the corporation is a party; except that the right to
receive payment of the fair value of his shares shall
not
be
available to (i) a shareholder in the merger of a parent and subsidiary
corporation and (ii) a shareholder whose shares of stock are listed on a
national securities exchange or designated as a national market system security
on an interdealer system by the National Association of Securities Dealers;
(B)
any sale, lease, exchange or other disposition of all or substantially all
of
the assets of a corporation which requires shareholder approval other than
a
transaction wholly for cash where the shareholders’ approval thereof is
conditioned upon the dissolution of the corporation and the distribution of
substantially all of its net assets to the shareholders in accordance with
their
respective interest within one year after the date of the transaction; (C)
any
shares exchange in which the corporation is participating as a subject
corporation; except that the right to receive payment of the fair value of
his
shares shall not be available to a shareholder whose shares have not been
acquired in the exchange or to a shareholder for the shares of any class or
series of stock, which shares are listed on a national securities exchange
or
designated as a national market system security on an interdealer system by
the
National Association of Securities Dealers; (2)Any shareholder of the subsidiary
corporation in a merger or in a share exchange who files with the corporation
a
written notice of election to dissent and (3)Any shareholder, not entitled
to
vote with respect to a plan or merger or consolidateion to which the corporation
is a party, whose shares will be cancelled or exchanged in the merger or
consolidation for cash of other consideration other than shares of the surviving
or consolidated corporation or another corporation
Nevada
law allows for dissenters’ rights only in connection with certain mergers or
consolidations. No such dissenters rights exist, however, for corporations
whose
shares are listed on a national securities exchange, included in the national
market system by the National Association of Securities Dealers, Inc., or held
by at least 2,000 stockholders of record unless the Articles of Incorporation
provide otherwise (Bio Solutions Nevada’s Articles of Incorporation do not
provide otherwise) or unless: (a) The articles of incorporation of the
corporation issuing the shares provide otherwise; or (b) The holders of the
class or series are required under the plan of merger or exchange to accept
for
the shares anything except: (1) cash, owner’s interests or owner’s interests and
cash in lieu of fractional owner’s interests of: (i) the surviving or acquiring
entity; or (ii) any other entity which, at the effective date of the plan of
merger or exchange, were either listed on a national securities exchange,
included in the national market system by the National Association of Securities
Dealers, Inc., or held of record by a least 2,000 holders of owner’s interests
of record; or (2) a combination of cash and owner’s interests of the kind
described in (i) and (ii) above.
8
Under
New
York law, each party is required to pay its own costs and expenses, including
the fees and expenses of its own counsel and any experts employed by it.
However, the court may, in its discretion, apportion and assess all or any
part
of the costs, expenses and fees incurred by the corporation against any or
all
of the dissenting shareholders IF the courts finds that their refusal to accept
the corporate offer was arbitrary, vexatious or not in good faith. Under Nevada
law, the courts generally assess the costs associated with asserting dissenters’
rights against the corporation. If, however, the court finds that the dissenters
acted arbitrarily, vexatiously, or not in good faith in initiating an assessment
proceeding, the court has discretion to assess costs against some or all
dissenters.
Action
by Shareholders Without a Meeting
New
York
law permits action to be taken by written consent if such consent is singed
by
all outstanding shares entitled to vote thereon, or if the certificate of
incorporation so permits, signed by 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 which all shares entitled to thereon were present
and voted.
Nevada
law permits action required or permitted to be taken at a shareholder’s meeting
to be taken if the written consent is signed by the holders of shares that
would
have been required to effect the action at an actual meeting of the
stockholders. Nevada law also provide that a corporation’s articles of
incorporation may restrict or prohibit stockholders’ action without a meeting.
Bio Solutions Nevada’s Articles of Incorporation do not contain any such
restriction.
Action
by Directors Without a Meeting
New
York
and Nevada law each permit directors to take unanimous written action without
a
meeting in an action otherwise required or permitted to be taken at a board
meeting.
Conflicts
of Interest
Under
both New York law and Nevada law, a contract or transaction between a
corporation and one or more of its directors, or an entity in or of which one
or
more of the corporation’s directors are directors, officers, or legal
representatives or have a material financial interest, is not void or voidable
solely by reason of the same, provided that the contract or transaction is
fair
and reasonable at the time it is authorized and is ratified by the corporation’s
stockholders after disclosure of the relationship or interest, or is authorized
in good faith by a majority of the disinterested members of the board of
directors after disclosure of the relationship or interest.
In
New
York, a directors' action respecting a transaction involving a conflict of
interest is effective if (i) the material facts as to such director’s interest
in such contract or transaction and as to any such common directorship,
officership or financial interest are disclosed in good faith or known to the
board, and the board approves such contract or transaction by a vote sufficient
for such purpose without counting the vote of such interested director, or
if
the votes of the disinterested directors are insufficient to constitute a
quorum, by unanimous vote of the disinterested directors or (2) if the material
facts as to such director’s interest in such contract or transaction and as to
any such common directorship, officership or financial interest are disclosed
in
good faith or known to the shareholders entitled to vote thereon, and such
contract or transaction is approved by vote of such shareholders. If a contract
or other transaction between a corporation and one or more of its directors,
or
between a corporation and any other corporation, firm, association or other
entity in which one or more of the directors are directors, officers, or have
a
substantial financial interest is not
approved
in the manner set forth above, the corporation may avoid the contract or
transaction unless the party or parties thereto shall establish affirmatively
that the contract or transaction was fair and reasonable as to the corporation
at the time it was approved by the board or the shareholders.
9
In
contrast, in Nevada the vote or votes of a common or interested director are
counted for the purpose of authorizing or approving the contract or transaction,
if one of the following exists: (a) the fact of the common directorship, office
or financial interest is known to the board of directors or committee, and
the
board or committee authorizes, approves or ratifies the contract or transaction
in good faith by a vote sufficient for the purpose without counting the vote
or
votes of the common or interested director or directors; (b) the fact of the
common directorship, office or financial interest is known to the stockholders,
and they approve or ratify the contract or transaction in good faith by a
majority vote of stockholders holding a majority of the voting power; (c) the
fact of the common directorship, office or financial interest is not known
to
the director or officer at the time the transaction is brought before the board
of directors of the corporation for action; and (d) the contract or transaction
is fair as to the corporation at the time it is authorized or
approved.
Bio
Solutions Nevada intends to adopt a conflicts of interest policy upon completion
of the merger. This policy provides that no director shall participate in any
discussion or consideration involving a conflict of interest related to the
relationship between Bio Solutions Nevada, on the one hand, and such director
or
any of his or her affiliates, on the other hand.
Directors’
Standard of Care and Personal Liability
New
York
law provides that a director must discharge his duties in good faith and with
that degree of care which an ordinary prudent person in a like position would
use under similar circumstances. In performing his duties, a director shall
be
entitled to rely on information, opinions, reports or statements including
financial statements and other financial data, in each case prepared or
presented by (1) one or more officers or employees of the corporation (or
majority owned subsidiary thereof), whom the director believes to be reliable
and competent in the matters presented; (2) counsel, public accountants or
other
persons as to matters which the director believes to be within such person’s
professional or expert competence or (3) a committee of the board upon which
he
does not serve, duly designated in accordance with a provision of the
certificate of incorporation or the by-laws In taking action, including without
limitation, a change or potential change in the control of the corporation,
a
director shall be entitled to consider (1) both the long term and short term
interests of the corporation and its shareholders and (2) the effects that
the
corporation’s actions may have in the short term or long term on any of the
following; (i) the prospects for potential growth, development, productivity
and
profitability of the corporation; (ii) the corporation’s current employees;
(iii) the corporation’s retired employees and other beneficiaries receiving
retirement, welfare or similar benefits from or pursuant to any plan sponsored
by the corporation; (iv) the corporation’s customers and creditors and (v) the
ability of the corporation to provide, as a going concern, goods, services,
employment opportunities and otherwise to contribute to the communities in
which
it does business.
In
Nevada, both directors and officers are required to exercise their powers in
good faith and with a view to the interests of the corporation. In performing
their respective duties, directors and officers are entitled to rely on
information, opinions, reports, books of account or statements, including
financial statements and other financial data, that are prepared or presented
by: (a) one or more directors, officers or employees of the corporation
reasonably believed to be reliable and competent in the matters prepared or
presented; (b) counsel, public accountants, financial advisers, valuation
advisers, investment bankers or other persons as to matters reasonably believed
to be within the preparer’s or presenter’s professional or expert competence; or
(c) a committee on which the director or officer relying thereon does not serve,
as to matters within the committee’s designated authority and matters on which
the committee is reasonably believed to merit confidence. Directors and
officers, in deciding upon matters of business, are presumed to act in good
faith, on an informed basis, with a view to the interests of the corporation
and
may consider: (a) the interests of the corporation’s employees, suppliers,
creditors and customers; (b) the economy of the State and Nation; (c) the
interests of the community and of society; and (d) the long-term as well as
short-term interests of the corporation and its stockholders, including the
possibility that these interests may be best served by the continued
independence of the corporation. Directors and officers are not required to
consider the effect of a proposed corporate action upon any particular group
having an interest in the corporation as a dominant factor.
10
Limitation
or Elimination of Director’s Personal Liability
In
Nevada, except as otherwise provided by Nevada law, or unless the articles
of
incorporation or an amendment thereto, provide for greater individual liability,
a director or officer is not individually liable to the corporation or its
stockholders or creditors for any damages as a result of any act or failure
to
act in his capacity as a director or officer unless it is proven that: (a)
his
act or failure to act constituted a breach of his fiduciary duties as a director
or officer; and (b) his breach of those duties involved intentional misconduct,
fraud or a knowing violation of law.
Bio
Solutions Nevada’s Articles of Incorporation contain a provision eliminating the
personal liability of its directors for breach of fiduciary duty as a director,
subject to the foregoing limitations.
New
York
law provides that a director shall have no personal liability for breach of
his
or her duties as a director if he exercised his duty as described above under
“Directors Standard of Care and Personal Liability.”
Indemnification
New
York
law provides that a director’s right to indemnification can be contained in the
certificate of incorporation or the by-laws or, when authorized by such
certificate of incorporation or by-laws, (i) a resolution of shareholders,
(ii)
a resolution of directors, or (iii) an agreement providing for such
indemnification, provided that no indemnification may be made to or on behalf
of
any director or officer if a judgment or other final adjudication adverse to
the
director or officer establishes that his acts were committed in bad faith or
were the result of active and deliberate dishonesty and were material to the
cause of action so adjudicated, or that he personally gained in fact a financial
profit or other advantage to which he was not legally entitled.
Nevada
law permits the indemnification of a director, officer, employee or agent in
the
proper circumstances. The determination must be made: (a) by the stockholders;
(b) by the board of directors by majority vote of a quorum consisting of
directors who were not parties to the action, suit or proceeding; (c) if a
majority vote of a quorum consisting of directors who were not parties to the
action, suit or proceeding so orders, by independent legal counsel in a written
opinion; or (d) if a quorum consisting of directors who were not parties to
the
action, suit or proceeding cannot be obtained, by independent legal counsel
in a
written opinion. In addition, the articles of incorporation, the bylaws or
an
agreement made by the corporation may provide that the expenses of officers
and
directors incurred in defending a civil or criminal action, suit or proceeding
must be paid by the corporation as they are incurred and in advance of the
final
disposition of the action, suit or proceeding, upon receipt of an undertaking
by
or on behalf of the director or officer to repay the amount if it is ultimately
determined by a court of competent jurisdiction that he is not entitled to
be
indemnified by the corporation.
11
The
Articles of Incorporation of Bio Solutions Nevada provide for indemnification
to
the full extent permitted by Nevada law.
Classified
Board of Directors
Under
New
York law, the certificate of incorporation or the specific provisions of a
by-law adopted by the shareholders may provide that the directors be divided
into either two, three or four classes. All classes shall be as nearly equal
in
number as possible. The terms of office of the directors initially classified
shall be as follows: that of the first class shall expire at the next annual
meeting of shareholders, the second class at the second succeeding annual
meeting, the third class, if any, at the third succeeding annual meeting, and
the fourth class, if any, at the fourth succeeding annual meeting.
In
Nevada, the articles of incorporation or the bylaws of a corporation may provide
for the classification of directors as to the duration of their respective
terms
of office or as to their election by one or more authorized classes or series
of
shares, but at least one-fourth in number of the directors of every corporation
must be elected annually. In addition, If an amendment reclassifying the
directors would otherwise increase the term of a director, unless the amendment
is to the articles of incorporation and otherwise provides, the term of each
incumbent director on the effective date of the amendment terminates on the
date
it would have terminated had there been no reclassification. In addition, the
articles of incorporation may provide that the voting power of individual
directors or classes of directors may be greater than or less than that of
any
other individual directors or classes of directors, and the different voting
powers may be stated in the articles of incorporation or may be dependent upon
any fact or event that may be ascertained outside the articles of incorporation
if the manner in which the fact or event may operate on those voting powers
is
stated in the articles of incorporation.
Under
New
York law, at each annual meeting of shareholders, directors shall be elected
to
hold office until the next annual meeting except as authorized in a company’s
certificate of incorporation or bylaws. The certificate of incorporation may
provide for the election of one or more directors by the holders of the shares
of any class or series, or by the holders of bonds entitled to vote in the
election of directors voting as a class
In
Nevada, the articles of incorporation of any corporation may provide that at
all
elections of directors of the corporation each holder of stock possessing voting
power is entitled to as many votes as equal the number of his shares of stock
multiplied by the number of directors to be elected, and that he may cast all
of
his votes for a single director or may distribute them among the number to
be
voted for or any two or more of them, as he may see fit. However, to exercise
the right of cumulative voting, one or more of the stockholders requesting
cumulative voting must give written notice to the president or secretary of
the
corporation that the stockholder desires that the voting for the election of
directors be cumulative.
Neither
Bio Solutions’ articles of incorporation nor Bio Solutions Nevada’s Articles of
Incorporation provide for cumulative voting in elections of
directors.
Removal
of Directors
Under
New
York law, any or all of the directors may be removed for cause by vote of the
shareholders. The certificate of incorporation or the specific provisions of
a
by-law adopted by the shareholders may provide for such removal by action of
the
board, except in the case of any director elected by cumulative voting, or
by
the holders of the shares of any class or series, or holders of bonds, voting
as
a class, when so entitled by the provisions of the certificate of incorporation.
In addition, f the certificate of incorporation or the by-laws so provide,
any
or all of the directors may be removed without cause by vote of the
shareholders.
12
In
Nevada, any director may be removed from office by the vote of stockholders
representing not less than two-thirds of the voting power of the issued and
outstanding stock entitled to vote. In addition, the articles of incorporation
may require the concurrence of more than two-thirds of the voting power of
the
issued and outstanding stock entitled to vote in order to remove one or more
directors from office.
Vacancies
on Board of Directors
Under
New
York law, newly created directorships resulting from an increase in the number
of directors and vacancies occurring in the board for any reason except the
removal of directors without cause may be filled by vote of the board. If the
number of the directors then in office is less than a quorum, such newly created
directorships and vacancies may be filled by vote of a majority of the directors
then in office. Nothing in this paragraph shall affect any provision of the
certificate of incorporation or the by-laws which provides that such newly
created directorships or vacancies shall be filled by vote of the shareholders,
or any provision of the certificate of incorporation specifying greater
requirements as permitted under New York corporate law. In addition, unless
the
certificate of incorporation or the specific provisions of a by-law adopted
by
the shareholders provide that the board may fill vacancies occurring in the
board by reason of the removal of directors without cause, such vacancies may
be
filled only by vote of the shareholders.
Under
Nevada law, a vacancy on a corporation’s board of directors may be filled by a
majority of the remaining directors, although less than a quorum, or by the
affirmative vote of a majority of the outstanding voting shares, unless
otherwise provided in the Articles of incorporation or bylaws.
Bio
Solutions Nevada’s bylaws provide that a vacancy on a board of directors shall
be filled by the affirmative vote of a majority of the remaining directors.
Annual
Meetings of Shareholders
New
York
law provides that a meeting of shareholders shall be held annually for the
election of directors and the transaction of other business on a date fixed
by
or under the by-laws. A failure to hold the annual meeting on the date so fixed
or to elect a sufficient number of directors to conduct the business of the
corporation shall not work a forfeiture or give cause for dissolution of the
corporation.
Nevada
law provides that unless otherwise provided in the articles of incorporation
or
bylaws, the entire board of directors, any two directors or the president may
call annual and special meetings of the stockholders and directors.
Bio
Solutions Nevada’s bylaws provide for annual meetings.
Special
Meetings of Shareholders
New
York
law provides that special meetings of the shareholders may be called by the
board and by such person or persons as may be so authorized by the certificate
of incorporation or the by-laws.
Under
Nevada law, unless otherwise provided in the corporation’s articles of
incorporation or bylaws, the entire board of directors, any two directors or
the
president may call special meetings of the stockholders and directors which
may
be held within or without the state of Nevada.
Inspection
of Shareholder Lists
Under
New
York law, a list of shareholders as of the record date, certified by the
corporate officer responsible for its preparation or by a transfer agent, shall
be produced at any meeting of shareholders upon the request thereat or prior
thereto of any shareholder. If the right to vote at any meeting is challenged,
the inspectors of election, or person presiding thereat, shall require such
list
of shareholders to be produced as evidence of the right of the persons
challenged to vote at such meeting, and all persons who appear from such list
to
be shareholders entitled to vote thereat may vote at such
meeting.
13
In
Nevada, a corporation is required to keep a copy of a stock ledger or a
duplicate stock ledger, revised annually, containing the names, alphabetically
arranged, of all persons who are stockholders of the corporation, showing their
places of residence, if known, and the number of shares held by them
respectively. In lieu of the stock ledger or duplicate stock ledger, the
corporation may keep a statement setting out the name of the custodian of the
stock ledger or duplicate stock ledger, and the present and complete mailing
or
street address where the stock ledger or duplicate stock ledger specified in
this section is kept. Any person who has been a stockholder of record of a
corporation for at least 6 months immediately preceding his demand, or any
person holding, or thereunto authorized in writing by the holders of, at least
5
percent of all of its outstanding shares, upon at least 5 days’ written demand
is entitled to inspect in person or by agent or attorney, during usual business
hours, the records of the corporation and make copies therefrom.
Amendment
of the Charter
Under
New
York law, if a corporation has issued shares, a proposed mendment or change
of
the certificate of incorporation may be authorized by vote of the board,
followed by vote of a majority of all outstanding shares entitled to vote
thereon at a meeting of shareholders; provided, however, that, whenever the
certificate of incorporation requires action by the board of directors, by
the
holders of any class or series of shares, or by the holders of any other
securities having voting power by the vote of a greater number or proportion
than is required by any section of this article, the provision of the
certificate of incorporation requiring such greater vote shall not be altered,
amended, or repealed except by such greater vote; and provided further that
an
amendment to the certificate of incorporation for the purpose of reducing the
requisite vote by the holders of any class or series of shares or by the holders
of any other securities having voting power that is otherwise provided for
in
any section of this chapter that would otherwise require more than a majority
of
the votes of all outstanding shares entitled to vote thereon shall not be
adopted except by the vote of such holders of class or series of shares or
by
such holders of such other securities having voting power that is at least
equal
to that which would be required to take the action provided.
Alternatively,
any one or more of the following changes may be authorized by or pursuant to
authorization of the board: (1) To specify or change the location of the
corporation's office. (2) To specify or change the post office address to which
the secretary of state shall mail a copy of any process against the corporation
served upon him. (3) To make, revoke or change the designation of a registered
agent, or to specify or change the address of its registered agent.
In
Nevada, if a corporation has issued shares, an amendment to the articles of
incorporation must be made in the following manner: (a) The board of directors
must adopt a resolution setting forth the amendment proposed and either call
a
special meeting of the stockholders entitled to vote on the amendment or direct
that the proposed amendment be considered at the next annual meeting of the
stockholders entitled to vote on the amendment; (b) at the meeting, of which
notice must be given to each stockholder entitled to vote, a vote of the
stockholders entitled to vote in person or by proxy must be taken for and
against the proposed amendment. If it appears upon the canvassing of the votes
that stockholders have voted in favor of the amendment, an officer of the
corporation shall sign a certificate setting forth the amendment, or setting
forth the articles of incorporation as amended, and the vote by which the
amendment was adopted; and (c) the certificate so signed must be filed with
the
Secretary of State. In addition, if any proposed amendment would adversely
alter
or change any preference or any relative or other right given to any class
or
series of outstanding shares, then the amendment must be approved by the vote,
in addition to the affirmative vote otherwise required, of the holders of shares
representing a majority of the voting power of each class or series adversely
affected by the amendment regardless of limitations or restrictions on the
voting power thereof. The amendment does not have to be approved by the vote
of
the holders of shares representing a majority of the voting power of each class
or series whose preference or rights are adversely affected by the amendment
if
the articles of incorporation specifically deny the right to vote on such an
amendment.
Under
New
York law, by-laws may be adopted, amended or repealed by a majority of the
votes
cast by the shares at the time entitled to vote in the election of any
directors. When so provided in the certificate of incorporation or a by-law
adopted by the shareholders, by-laws may also be adopted, amended or repealed
by
the board by such vote as may be therein specified, which may be greater than
the vote otherwise prescribed, but any by-law adopted by the board may be
amended or repealed by the shareholders entitled to vote thereon as herein
provided.
In
Nevada, subject to the bylaws, if any, adopted by the stockholders, the
directors may make the bylaws of the corporation and unless otherwise prohibited
by any bylaw adopted by the stockholders, the directors may adopt, amend or
repeal any bylaw, including any bylaw adopted by the stockholders. The articles
of incorporation may grant the authority to adopt bylaws exclusively to the
directors.
Bio
Solutions Nevada’s Articles of Incorporation place the power to adopt, amend, or
repeal bylaws in its board of directors.
Proxies
Both
New
York and Nevada law permit proxies of definite duration. However, Nevada limits
the duration to seven years. In the event the proxy is indefinite as to its
duration, under New York law it is valid for 11 months, under Nevada law, for
six months.
Dividends
Under
New
York law, a corporation may declare and pay dividends or make other
distributions in cash or its bonds or its property, including the shares or
bonds of other corporations, on its outstanding shares, except when currently
the corporation is insolvent or would thereby be made insolvent, or when the
declaration, payment or distribution would be contrary to any restrictions
contained in the certificate of incorporation.
.
In
Nevada, after payment of all allowances, expenses and costs, and the
satisfaction of all special and general liens upon the funds of the corporation
to the extent of their lawful priority, the creditors shall be paid
proportionately to the amount of their respective debts, excepting mortgage
and
judgment creditors when the judgment has not been by confession for the purpose
of preferring creditors. The creditors shall be entitled to distribution on
debts not due, making in such case a rebate of interest, when interest is not
accruing on the same. The surplus funds, if any, after payment of the creditors
and the costs, expenses and allowances, shall be distributed among the
stockholders or their legal representatives in proportion to their
interests.
Stock
Repurchases
Under
New
York law, a corporation may acquire its own shares, and shares so acquired
constitute authorized but unissued shares. However, if the certificate of
incorporation prohibits the reissue of the acquired shares, the number of
authorized shares is reduced by the number of shares acquired.
In
Nevada, every corporation in this state may, whenever at any assessment sale
of
the stock of the corporation no person will take the stock and pay the
assessment, or amount unpaid and due thereon and costs, purchase such stock
and
hold the stock for the benefit of the corporation. All purchases of its own
stock by any corporation which have been previously made at assessment sales
whereat outside persons have failed to bid, and which purchases were for the
amount of assessments due, and costs or otherwise, are valid, and vest the
legal
title to the stock in the corporation. The stock so purchased is subject to
the
control of the remaining stockholders, who may dispose of the stock as they
may
deem fit.
15
Voluntary
Dissolution
Under
New
York law, a dissolution shall be authorized at a meeting of shareholders by
(i)
for corporations the certificate of incorporation of which expressly provides
such or corporations incorporated after the effective date of paragraph (b)
of
this section, a majority of the votes of all outstanding shares entitled to
vote
thereon or (ii) for other corporations, two-thirds of the votes of all
outstanding shares entitled to vote thereon. Any corporation may adopt an
amendment of the certificate of incorporation providing that such dissolution
shall be authorized at a meeting of shareholders by a specified proportion
of
votes of all outstanding shares entitled to vote thereon, provided that such
proportion may not be less than a majority.
In
Nevada, if the board of directors of any corporation decides that the
corporation should be dissolved, the board may adopt a resolution to that
effect. If the corporation has issued no stock, only the directors need to
approve the dissolution. If the corporation has issued stock, the directors
must
recommend the dissolution to the stockholders. The corporation shall notify
each
stockholder entitled to vote on dissolution, and the stockholders entitled
to
vote must approve the dissolution. If the dissolution is approved by the
directors or both the directors and stockholders, the corporation shall file
with the Office of the Secretary of State a certificate signed by an officer
of
the corporation setting forth that the dissolution has been approved by the
directors, or by the directors and the stockholders, and a list of the names
and
addresses, either residence or business, of the corporation’s president,
secretary and treasurer, or the equivalent thereof, and all of its directors.
The dissolution takes effect upon the filing of the certificate of dissolution
or upon a later date specified in the certificate, which must be not more than
90 days after the date on which the certificate is filed.
Judicial
Dissolution
Under
New
York law, the attorney-general may bring an action for the dissolution of a
corporation upon one or more of the following grounds: (1) That the corporation
procured its formation through fraudulent misrepresentation or concealment
of a
material fact. (2) That the corporation has exceeded the authority conferred
upon it by law, or has violated any provision of law whereby it has forfeited
its charter, or carried on, conducted or transacted its business in a
persistently fraudulent or illegal manner, or by the abuse of its powers
contrary to the public policy of the state has become liable to be
dissolved.
In
addition, if a majority of the board adopts a resolution that finds that the
assets of a corporation are not sufficient to discharge its liabilities or
that
a dissolution will be beneficial to the shareholders, it may present a petition
for its dissolution.
Furthermore,
if the shareholders of a corporation adopt a resolution stating that they find
that its assets are not sufficient to discharge its liabilities, or that they
deem a dissolution to be beneficial to the shareholders, the shareholders or
such of them as are designated for that purpose in such resolution may present
a
petition for its dissolution. A shareholders' meeting to consider such a
resolution may be called, notwithstanding any provision in the certificate
of
incorporation, by the holders of shares representing ten percent of the votes
of
all outstanding shares entitled to vote thereon, or if the certificate of
incorporation authorizes a lesser proportion of votes of shares to call the
meeting, by such lesser proportion. The resolution may be adopted at a meeting
of shareholders by vote of a majority of the votes of all outstanding shares
entitled to vote thereon or if the certificate of incorporation requires a
greater proportion of votes to adopt such a resolution, by such greater
proportion.
16
Nevada
law provides that courts may revoke or forfeit the charter of any corporation
for non-use, misuse or nonuser of its corporate powers, privileges or
franchises.
Federal
Income Tax Consequences of the Merger
The
Reincorporation is intended to be tax free under the Internal Revenue Code.
Accordingly, you will recognize no gain or loss for federal income tax purposes
as a result of the completion of the Reincorporation. You will have a tax basis
in your shares of capital stock of Bio Solutions Nevada equal to your tax basis
in your shares of capital stock of Bio Solutions. Provided that you have held
your shares of capital stock of Bio Solutions as a capital asset, your holding
period for the shares of capital stock of Bio Solutions Nevada will include
the
holding period of your shares of capital stock of Bio Solutions. Neither we
nor
Bio Solutions Nevada will recognize any gain or loss for federal income tax
purposes as a result of the Reincorporation, and Bio Solutions Nevada will
succeed, without adjustment, to our tax attributes.
You
should consult your own tax advisers as to the particular tax consequences
to
you of the Reincorporation under state, local or foreign tax
laws.
Dissenters’
Rights
Under
the
New York Business Corporation Law, you are not
entitled
to dissent from the Reincorporation proposal and obtain “fair value” plus
interest for your shares by asserting your dissenters’ rights.
17
PROPOSAL
2
AUTHORIZATION
TO THE BOARD OF DIRECTORSTO CHANGE OUR NAME TO A NAME TO BE DETERMINED BY THE
BOARD OF DIRECTORS
On
August28, 2008, our board of directors unanimously adopted a resolution declaring
it
advisable to seek authorization from our stockholders to change the name of
the
company to a new name to be chosen in the discretion of our board of directors.
This name change would require an additional amendment to our articles of
incorporation. In the event stockholders approve this proposal, we would file
another amendment to our articles of incorporation with the Nevada Secretary
of
State. This amendment will become effective at the close of business on the
date
the amendment to the articles of incorporation is accepted for filing by the
Nevada Secretary of State.
Our
board
of directors feels that a name change may be in our best interest in the future.
Authorization of a name change without further stockholder
approval is important to us, Inasmuch as we will be able to change our name
and
corporate identity quickly. Presently, we need to go to the time and expense
of
having a stockholder's meeting in order to effectuate a name change. We desire
to be able to quickly deal with situations calling for us to modify our name
and
corporate identity. Although our management considers it possible that we may
change our name in the future, we do not have current plans to change our
name.
18
RECENT
CHANGES
Authorization
of Series of Preferred Stock
On
July25, 2008, our board of directors authorized the creation of a series of
preferred stock of the company to be known as series A preferred stock, $0.001
par value per share. We designated 10,000 shares of its preferred stock as
series A preferred stock. The series A preferred stock has preferred voting
rights only
and does
not have any preferential dividend, liquidation, redemption or conversion
rights. Holders of our series A preferred stock are entitled to the number
of
votes on such matters equal to the product of (a) the number of shares of the
series A preferred stock held by such holder, (b) the number of issued and
outstanding shares of the Company’s common stock, on a fully-diluted basis, as
of the record date for the vote, or, if no such record date is established,
as
of the date such vote is taken or any written consent of stockholders is
solicited, and (c) 0.0002.
The
holders of series A preferred stock and the holders of our common stock shall
be
entitled to notice of any shareholders’ meeting and to vote as a single class
upon any matter submitted to the shareholders for a vote
Change
in Control
On
August1, 2008, we agreed to issue Patricia M. Spreitzer 10,000 shares of our series
A
preferred stock pursuant to a Stock Purchase Agreement in consideration of
$10,000 of accrued and unpaid salary due her. The transaction was exempt
pursuant to Section 4(2) of the Securities Act of 1933.
The
sale
of the series A preferred stock to Ms. Spreitzer effectively transferred control
of the company to Ms. Spreitzer.
THIS
AGREEMENT AND PLAN OF MERGER (“Plan
of Merger”)
made
as of this 4th day of September, 2008, is by and between Bio Solutions
Manufacturing, Inc., a New York corporation (“Bio
Solutions New York”),
and
Bio Solutions Nevada International, Inc., a Nevada corporation (“Bio
Solutions Nevada”).
Bio
Solutions and Bio Solutions Nevada are sometimes referred to hereinafter as
the
“Constituent
Corporations.”
RECITALS
A. The
authorized capital stock of Bio Solutions New York consists of the following:
(i) 100,000,000 shares
of
common stock, $0.001 par value per share (the “Common
Stock”)
of
which
all 89,078,228 shares are currently issued and outstanding (ii) 10,000,000
shares of preferred stock, $0.001 per shares (“Preferred
Stock”),
of
which 10,000 shares have been designated as series A preferred stock (“Series A
Preferred”) of which 10,000 shares are issued and outstanding.
B. Upon
completion of the merger contemplated hereby, the authorized capital stock
of
Bio Solutions Nevada will consist of the following: 1,000,000,000 shares
of
common stock, $.00001 par value per share, of
which
89,078,228 shares will be issued and outstanding,
and
10,000,000 shares of Preferred Stock, $.00001 par value per share, of
which
10,000 shares have been designated as series A preferred stock of which 10,000
shares will be issued and outstanding.
C. The
directors of the Constituent Corporations deem it advisable and to the advantage
of such corporations that Bio Solutions New York merge with and into Bio
Solutions Nevada upon the terms and conditions herein provided.
D. The
parties intend that the merger contemplated hereby shall be a tax free
reorganization under Section 368(a)(1)(F) of the Internal Revenue Code of 1986,
as amended.
NOW,
THEREFORE, the parties hereby adopt the plan of merger encompassed by this
Plan
of Merger and, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, do hereby agree that Bio Solutions shall
merge
with and into Bio Solutions Nevada on the following terms and
conditions:
ARTICLE
I.
TERMS
AND CONDITIONS OF THE MERGER
1.1Merger.
As soon
as practicable following the fulfillment (or waiver, to the extent permitted
herein) of the conditions specified herein, Bio Solutions New York shall be
merged with and into Bio Solutions Nevada (the “Merger”),
and
Bio Solutions Nevada shall survive the Merger.
1.2Effective
Date.
The
Merger shall be effective upon the filing of Articles of Merger, together with
a
copy of this Plan of Merger, with the New York Secretary of State, and the
filing of a Certificate of Merger with the Nevada Secretary of State, as
provided by the New York Business Corporation Law and the Nevada general
corporation law (the “Effective
Date”).
1.3Surviving
Corporation.
On the
Effective Date, Bio Solutions Nevada, as the surviving corporation (the
“Surviving
Corporation”),
shall
continue its corporate existence under the laws of the State of Nevada and
shall
succeed to all of the rights, privileges, powers and property of Bio Solutions
in the manner of and as more fully set forth in the Nevada Revised Statues,
and
the separate corporate existence of Bio Solutions, except insofar as it may
be
continued by operation of law, shall cease and be terminated.
A-1
1.4Capital
Stock of Bio Solutions and Bio Solutions Nevada.
On the
Effective Date, by virtue of the Merger and without any further action on the
part of the Constituent Corporations or their shareholders:
(a) Each
share of Common Stock of Bio Solutions New York issued and outstanding
immediately prior to the Effective Date shall be changed and converted into
one
(1) fully paid and nonassessable share of the common stock, par value $.00001
per share, of Bio Solutions Nevada (“Bio
Solutions Nevada Common Stock”);
and
(b) Each
share of series A preferred stock of Bio Solutions New York issued and
outstanding immediately prior to the Effective Date shall be changed and
converted into one (1) fully paid and nonassessable share of the series A
preferred stock, par value $.00001 per share, of Bio Solutions Nevada
(“Bio
Solutions Nevada Series A Preferred Stock”)
(c) Each
share of common stock, par value $.001 per share, of Bio Solutions Nevada issued
and outstanding immediately prior to the Effective Date (__ shares held by
Bio
Solutions New York) shall be canceled and returned to the status of authorized
but unissued Bio Solutions Nevada Common Stock
1.5Stock
Certificates.
On and
after the Effective Date, all of the outstanding certificates that, prior to
that time, represented each share of the capital stock of Bio Solutions New
York
shall be deemed for all purposes to evidence ownership and to represent one
(1)
share of the capital stock of Bio Solutions Nevada and shall be so registered
on
the books and records of Bio Solutions Nevada or its transfer agent. The
registered owner of any such outstanding stock certificates shall, until such
certificates shall have been surrendered for transfer or conversion or otherwise
accounted for to Bio Solutions Nevada or its transfer agent, have and be
entitled to exercise any voting and other rights with respect to, and to receive
any dividend or other distributions upon, the shares of Bio Solutions Nevada
evidenced by such outstanding certificates as above provided. After the
Effective Date, whenever certificates which formerly represented shares of
Bio
Solutions are presented for transfer or conversion, the Surviving Corporation
will cause to be issued in respect thereof a certificate or certificates
representing the appropriate number of shares of the capital stock of Bio
Solutions Nevada in accordance with Section 1.4 above.
1.6Stock
Options and Warrants.
Upon
the Effective Date, each outstanding option or warrant to purchase shares of
Common Stock of Bio Solutions New York shall, by virtue of the Merger and
without any action on the part of the holder thereof, become an option or
warrant to purchase, upon the same terms and conditions, the number of shares
of
Bio Solutions Nevada Common Stock which is equal to the number of shares of
Common Stock of Bio Solutions New York which the optionee would have received
had such optionee exercised his or her option or right in full immediately
prior
to the Effective Date (whether or not such option or right was then
exercisable). The exercise price per share under each of such options or
warrants shall be equal to the exercise price per share thereunder immediately
prior to the Effective Date.Other
Employee Benefit Plans.
Bio
Solutions Nevada will assume all of the obligations of Bio Solutions New York
under any and all employee benefit plans in effect as of the Effective Date
or
with respect to which employee rights or accrued benefits are outstanding as
of
the Effective Date.
A-2
ARTICLE
II.
CHARTER
DOCUMENTS, DIRECTORS AND OFFICERS
2.1Articles
of Incorporation.
On the
Effective Date, the Articles Incorporation of Bio Solutions Nevada will be
the
Articles of Incorporation of the Surviving Corporation without change or
amendment until duly amended in accordance with the provisions thereof and
applicable law.
2.2Bylaws.
The
Bylaws of Bio Solutions Nevada in effect on the Effective Date shall continue
to
be the Bylaws of the Surviving Corporation without change or amendment until
further amended in accordance with the provisions thereof and applicable
law.
2.3Directors.
The
directors of Bio Solutions New York immediately preceding the Effective Date
shall continue to be the directors of the Surviving Corporation on and after
the
Effective Date to serve until the expiration of their terms or until their
successors are duly elected and qualified.
2.4Officers.
The
officers of Bio Solutions New York immediately preceding the Effective Date
shall continue to be the officers of the Surviving Corporation on and after
the
Effective Date to serve until their successors are duly elected and
qualified.
ARTICLE
III.
MISCELLANEOUS
3.1Further
Assurances.
From
time to time and when required by the Surviving Corporation or by its successors
and assigns there shall be executed and delivered on behalf of Bio Solutions
New
York such deeds and other instruments and there shall be taken or caused to
be
taken by it such further and other action as shall be appropriate or necessary
in order to vest or perfect in or to confirm of record or otherwise, in the
Surviving Corporation the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of Bio Solutions New York and otherwise to carry out the purposes
of
this Plan of Merger and the officers and directors of the Surviving Corporation
are fully authorized in the name and on behalf of Bio Solutions New York or
otherwise to take any and all such action and to execute and deliver any and
all
such deeds and other instruments.
3.2Amendment.
At any
time prior to the Effective Date, this Plan of Merger may be amended in any
manner as may be determined in the judgment of the respective Boards of
Directors of Bio Solutions New York and Bio Solutions Nevada to be necessary,
desirable or expedient in order to clarify the intention of the parties hereto
or to effect or facilitate the purpose and intent of this Plan of Merger;
provided, however, that an amendment made subsequent to the adoption and
approval of this Plan of Merger by the shareholders of any Constituent
Corporation shall not do any of the following: (1) alter or change the amount
or
kind of shares, securities, cash, property and/or rights to be received in
exchange for or on conversion of all or any of the shares of any class or series
thereof of such Constituent Corporation; (2) alter or change any term of the
Articles of Incorporation of the Surviving Corporation to be effected by the
Merger; or (3) alter or change any of the terms and conditions of this Plan
of
Merger if such alteration or change would adversely affect the holders of any
class or series thereof of such Constituent Corporation.
3.3Conditions
of Merger.
The
respective obligations of the Constituent Corporations to effect the
transactions contemplated hereby is subject to satisfaction of the following
conditions (any or all of which may be waived by either of the Constituent
Corporations in its sole discretion to the extent permitted by
law):
A-3
a) This
Plan
of Merger shall have been approved by the shareholders of Bio Solutions New
York
in accordance with the New York Business Corporation Law;
b) Bio
Solutions New York, as sole shareholder of Bio Solutions Nevada, shall have
approved this Plan of Merger in accordance with Nevada law and
c) Any
and
all consents, permits, authorizations, approvals and orders deemed in the sole
discretion of Bio Solutions New York to be material to consummation of the
Merger shall have been obtained.
3.4Abandonment
or Deferral.
At any
time before the date of filing, this Plan of Merger may be terminated and the
Merger may be abandoned by the Board of Directors of either or both of the
Constituent Corporations notwithstanding the approval of this Plan of Merger
by
the shareholders of Bio Solutions New York, or the consummation of the Merger
may be deferred for a reasonable period of time if, in the opinion of the Boards
of Directors of the Constituent Corporations, such action would be in the best
interest of such Corporations. This Plan of Merger may be terminated at any
time
by the Board of Directors of Bio Solutions New York in the event that the number
of shares as to which shareholders have properly exercised their rights under
Section 79-4-11.08 of the New York Business Corporation Law is such that it
is
impracticable, in the sole judgment and discretion of such Board of Directors,
to proceed with the consummation of the Merger. In the event of termination
of
this Plan of Merger, this Plan of Merger shall become void and of no effect
and
there shall be no liability on the part of either Constituent Corporation or
its
Board of Directors or shareholders with respect thereto, except that Bio
Solutions New York shall pay all expenses of the Constituent Corporations
incurred in connection with the Merger.
3.5Counterparts.
In
order to facilitate the filing and recording of this Plan of Merger, the same
may be executed in any number of counterparts, each of which shall be deemed
to
be an original.
A-4
IN
WITNESS WHEREOF, the Plan of Merger, having first been duly approved by the
Boards of Directors of Bio Solutions New York and Bio Solutions Nevada, is
hereby executed on behalf of each of such corporations and attested by their
respective officers thereunto duly authorized.
BIO SOLUTIONS MANUFACTURING, INC.,
a New York corporation
By
/s/
David Bennett
David
Bennett
Its
President and Chief Executive Officer
BIO SOLUTIONS MANUFACTURING, INC.,
a Nevada corporation
By
/s/
David Bennett
David
Bennett
Its President and Chief Executive Officer
A-5
APPENDIX
B
AMENDED
AND RESTATED
ARTICLES
OF INCORPORATION
OF
BIO
SOLUTIONS MANUFACTURING, INC.
A
Nevada
Corporation
This
Amended and Restated Articles of Incorporation amends, restates and integrates
the provisions of the Articles of Incorporation of said corporation in their
entirety and has been duly adopted in accordance with Sections 78.390 and 78.403
of the Nevada Revised Statutes (NRS) by the written consent of the holders
of
the outstanding stock entitled to vote thereon in accordance with the provisions
of NRS 78.320.
1. The
name
of the corporation is Bio Solutions Manufacturing, Inc.
2. The
purpose of the corporation is to engage in any lawful act or activity for which
corporations may be organized under the laws of the State of
Nevada.
3. The
aggregate number of shares of all classes of capital stock which the corporation
shall have authority to issue is One Billion Ten Million (1,010,000,000) shares,
consisting of (i) One Billion (1,000,000,000) shares of common stock, par
value $0.00001 per share (the “Common Stock”), and (ii) Ten Million
(10,000,000) shares of preferred stock, par value $0.00001 per share (the
“Preferred Stock”). The Preferred Stock may be issued from time to time in one
or more series. The board of directors is authorized to fix the number of shares
of any series of Preferred Stock, to determine the designation of any such
series and to determine or alter the rights, preferences, privileges,
qualifications, limitations and restrictions granted to or imposed upon any
wholly unissued series of Preferred Stock and, within the limits and
restrictions stated in any resolution or resolutions of the board of directors
originally fixing the number of shares constituting any series, to increase
or
decrease (but not below the number of shares of such series then outstanding)
the number of shares of any such series subsequent to the issue of shares of
that series.
4. The
governing board of this corporation shall be known as directors. The initial
authorized number of directors shall be two (2). The number of directors may
from time to time be increased or decreased in such manner as shall be provided
by the bylaws of this corporation.
5. The
corporation shall have perpetual existence.
6.
Cumulative
voting shall not be permitted by the corporation.
7.
In
furtherance, and not in limitation of the powers conferred by statute, the
board
of directors is expressly authorized as follows:
(i) Subject
to the bylaws, if any, adopted by the stockholders, to make, alter or amend
the
bylaws of the corporation.
(ii) To
fix
the amount to be reserved as working capital over and above its capital stock
paid in, to authorize and cause to be executed mortgages and liens upon the
real
and personal property of this corporation.
B-1
(iii) By
resolution passed by a majority of the whole board, to designate one or more
committees, each committee to consist of one or more of the directors of the
corporation, which, to the extent provided in the resolution or in the bylaws
of
the corporation, shall have and may exercise the powers of the board of
directors in the management of the business and affairs of the corporation,
and
may authorize the seal of the corporation to be affixed to all papers which
may
require it. Such committee or committees shall have such name and names as
may
be stated in the bylaws of the corporation or as may be determined from time
to
time by resolution adopted by the board of directors.
(iv) When
and
as authorized by the affirmative vote of stockholders holding stock entitling
them to exercise at least a majority of the voting power given at a
stockholders’ meeting called for that purpose, or when authorized by the written
consent of the holders of at least a majority of the voting stock issued and
outstanding, the board of directors shall have power and authority at any
meeting to sell, lease or exchange all of the property and assets of the
corporation, including its good will and its corporate franchises, upon such
terms and conditions as its board of directors deem expedient and for the best
interest of the corporation.
8. Meetings
of stockholders may be held outside the State of Nevada, if the bylaws so
provide. The books of the corporation may be kept (subject to any provision
contained in the statutes) outside the State of Nevada at such place or places
as may be designated from time to time by the board of directors or in the
bylaws of the corporation.
9. The
personal liability of a director or officer to the corporation or its
stockholders for damages for breach of fiduciary duty as a director or officer
shall be eliminated to the fullest extent permissible under Nevada law except
for the following: (a) acts or omissions which involve intentional
misconduct, fraud or a knowing violation of law; or (b) the payment of
distributions in violation of Section 78.300 of the Nevada Revised
Statutes.
If
the
Nevada Revised Statutes are hereinafter amended to authorize the further
elimination or limitation of the liability of a director or officer, then the
liability of a director or officer of the corporation shall be eliminated or
limited to the fullest extent permitted by the Nevada Revised Statutes, so
as
amended.
Any
repeal or modification of the foregoing provisions of Article 9 by the
stockholders of the corporation shall not adversely affect any right or
protection of a director or officer of the corporation existing prior to the
date when such repeal or modification becomes effective.
10.
This
corporation reserves the right to amend, alter, change or repeal any provision
contained in the articles of incorporation, in the manner now or hereafter
prescribed by statute, or by the articles of incorporation, and all rights
conferred upon stockholders herein are granted subject to this
reservation.
11.
At
such
time, if any, as the corporation becomes a “resident domestic corporation,” as
that term is defined in Section 78.427 of the Nevada Revised Statutes, the
corporation shall not be subject to, or governed by, any of the provisions
in
Sections 78.411 to 78.444, inclusive, of the Nevada Revised Statutes, as may
be
amended from time to time, or any successor statute.
12.
At
such
time, if any, as the corporation becomes an “issuing corporation,” as that term
is defined in Section 78.3788 of the Nevada Revised Statutes, this corporation
shall not be subject to, or governed by any of the provisions in Sections 78.378
to 78.3793, inclusive, of the Nevada Revised Statutes, as may be amended from
time to time.
B-2
13. The
corporation may, by resolution or resolutions adopted by the board of directors
and without obtaining approval of the stockholders of the corporation, increase
or decrease the number of issued and outstanding shares of a class or series
of
its authorized capital stock held by each stockholder of record of such class
or
series without correspondingly increasing or decreasing the number of authorized
shares of such class or series. The resolution may, but is not required to,
also
provide for an increase or decrease of the number of authorized shares of such
class or series in either a corresponding or disproportionate ratio to the
increase or decrease in the number of issued and outstanding shares of such
class or series. The resolution may also provide for a change of the par value,
if any, of the same class or series of the shares increased or decreased. An
increase or decrease of the number of issued and outstanding shares of a class
or series of authorized capital stock does not have to be approved by either
(a)
the vote of stockholders holding a majority of the voting power of the affected
class or series, or (b) the vote of the holders of shares representing a
majority of the voting power of any class or series whose preference or rights
are adversely affected by the increase or decrease.
IN
WITNESS WHEREOF, the undersigned has executed these Amended and Restated
Articles on August 25, 2008.
The
rights, preferences, and privileges of the Series A Preferred Stock relative
to
those of the common stock, par value $0.00001 per share, of the Corporation
(the
“Common
Stock”)
are
set forth in this Certificate of Designation.
(a)Definitions.
For
purposes of this Certificate of Designation, the following definitions shall
apply and shall be equally applicable to both the singular and plural forms
of
the defined terms:
1.1. “Affiliate”
of
any
Person shall mean any Person who directly or indirectly controls, is controlled
by, or is under common control with, the indicated Person. For the purposes
of
this definition, “control” has the meaning specified as of the date hereof for
that word in Rule 405 promulgated by the United States Securities and Exchange
Commission under the Securities Act of 1933, as amended.
1.2. “Board”
shall
mean the Board of Directors of the Corporation.
1.3. “Corporation”
shall
mean Bio Solutions Manufacturing, Inc., a Nevada corporation.
1.4. “Convertible
Securities”
shall
mean evidences of indebtedness, shares of stock or other securities that are
at
any time, directly or indirectly, convertible into, exercisable for, or
exchangeable for Common Stock.
1.5. “Person”
shall
include all natural persons, corporations, business trusts, associations,
limited liability companies, partnerships, joint ventures and other entities,
governments, agencies and political subdivisions.
1.6. “Stated
Value”
shall
mean $1.00 (subject to appropriate adjustment to reflect stock splits, stock
dividends, stock combinations, recapitalizations, and like occurrences and
dividends and other distributions on such stock payable in shares of Series
A
Preferred Stock or Common Stock).
2.Voting
Rights.
In
addition to the other rights provided in this Certificate of Designation, by
agreement or by law, the holders of the Series A Preferred Stock and the holders
of the Common Stock shall vote together as a single class on all actions to
be
taken by the shareholders of the Corporation. At all meetings of the
shareholders of the Corporation and in the case of any actions of shareholders
in lieu of a meeting, each holder of the Series A Preferred Stock shall have
that number of votes on all matters submitted to the shareholders that is equal
to the product of (a) the number of shares of Series A Preferred Stock held
by
such holder, (b) the number of issued and outstanding shares of the
Corporation’s Common Stock on
a
Fully-Diluted Basis (as hereinafter defined),
as of
the record date for the vote, or, if no such record date is established, as
of
the date such vote is taken or any written consent of stockholders is solicited,
and (c) 0.0002, at the record date for the determination of the shareholders
entitled to vote on such matters or, if no such record date is established,
at
the date such vote is taken or any written consent of such shareholders is
effected.. “Fully-Diluted
Basis”
shall
mean that the total number of issued and outstanding shares of the Corporation’s
Common Stock shall be calculated to include the shares of Common Stock issuable
upon exercise and/or conversion of all of the following securities
(collectively, “Common
Stock Equivalents”):
all
outstanding (a) securities convertible into or exchangeable for Common Stock,
whether or not then convertible or exchangeable (collectively, “Convertible
Securities”),
(b)
subscriptions, rights, options and warrants to purchase shares of Common Stock,
whether or not then exercisable (collectively, “Options”),
and
(c) securities convertible into or exchangeable or exercisable for Options
or
Convertible Securities and any such underlying Options and/or Convertible
Securities.
7.No
Reissuance of Series A Preferred Stock.
No
share or shares of Series A Preferred Stock acquired by the Corporation by
reason of redemption, purchase, conversion or otherwise shall be
reissued.
8.Notices.
Unless
otherwise specified in the Corporation’s Articles of Incorporation or Bylaws,
all notices or communications given hereunder shall be in writing and, if to
the
Corporation, shall be delivered to it as its principal executive offices, and
if
to any holder of Series A Preferred Stock, shall be delivered to it at its
address as it appears on the stock books of the Corporation.
9.No
Preemptive Rights.
Shareholders shall have no preemptive rights except as granted by the
Corporation pursuant to written agreements.”
PRINCIPAL
OFFICES.
The
principal office shall be at 4440 Arville Street, Suite 6, Las Vegas, Nevada89103.
Section
1.OTHER
OFFICES.
The
board of directors may at any time establish branch or subordinate offices
at
any place or places where the corporation is qualified to do
business.
Article
II
MEETINGS
OF STOCKHOLDERS
Section
1.PLACE
OF MEETINGS.
Meetings of stockholders shall be held at any place within or without the State
of Nevada designated by the board of directors. In the absence of any such
designation, stockholders’ meetings shall be held at the principal executive
office of the corporation.
Section
2.ANNUAL
MEETINGS.
The
annual meetings of stockholders shall be held at a date and time designated
by
the board of directors. (At such meetings, directors shall be elected and any
other proper business may be transacted by a plurality vote of
stockholders.)
Section
3.SPECIAL
MEETINGS.
A
special meeting of the stockholders, for any purpose or purposes whatsoever,
unless prescribed by statute or by the articles of incorporation, may be called
at any time by the president and shall be called by the president or secretary
at the request in writing of a majority of the board of directors, or at the
request in writing of stockholders holding shares in the aggregate entitled
to
cast not less than a majority of the votes at any such meeting.
The
request shall be in writing, specifying the time of such meeting, the place
where it is to be held and the general nature of the business proposed to be
transacted, and shall be delivered personally or sent by registered mail or
by
telegraphic or other facsimile transmission to the chairman of the board, the
president, any vice president or the secretary of the corporation. The officer
receiving such request forthwith shall cause notice to be given to the
stockholders entitled to vote, in accordance with the provisions of Sections
4
and 5 of this Article II, that a meeting will be held at the time requested
by
the person or persons calling the meeting, not less than thirty-five (35) nor
more than sixty (60) days after the receipt of the request. If the notice is
not
given within twenty (20) days after receipt of the request, the person or
persons requesting the meeting may give the notice. Nothing contained in this
paragraph of this Section 3 shall be construed as limiting, fixing or affecting
the time when a meeting of stockholders called by action of the board of
directors may be held.
C-1
Section
4.NOTICE
OF STOCKHOLDERS’ MEETINGS.
All
notices of meetings of stockholders shall be sent or otherwise given in
accordance with Section 5 of this Article II not less than ten (10) nor more
than sixty (60) days before the date of the meeting being noticed. The notice
shall specify the place, date and hour of the meeting and (i) in the case of
a
special meeting the general nature of the business to be transacted, or (ii)
in
the case of the annual meeting those matters which the board of directors,
at
the time of giving the notice, intends to present for action by the
stockholders. The notice of any meeting at which directors are to be elected
shall include the name of any nominee or nominees which, at the time of the
notice, management intends to present for election.
If
action
is proposed to be taken at any meeting for approval of (i) contracts or
transactions in which a director has a direct or indirect financial interest,
(ii) an amendment to the articles of incorporation, (iii) a reorganization
of
the corporation, (iv) dissolution of the corporation, or (v) a distribution
to
preferred stockholders, the notice shall also state the general nature of such
proposal.
Section
5.MANNER
OF GIVING NOTICE; AFFIDAVIT OF NOTICE.
Notice
of any meeting of stockholders shall be given either personally or by
first-class mail or telegraphic or other written communication, charges prepaid,
addressed to the stockholder at the address of such stockholder appearing on
the
books of the corporation or given by the stockholder to the corporation for
the
purpose of notice. If no such address appears on the corporation’s books or is
given, notice shall be deemed to have been given if sent by mail or telegram
to
the corporation’s principal executive office, or if published at least once in a
newspaper of general circulation in the county where this office is located.
Personal delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute delivery of
such
notice to such corporation, association or partnership. Notice shall be deemed
to have been given at the time when delivered personally or deposited in the
mail or sent by telegram or other means of written communication. In the event
of the transfer of stock after delivery or mailing of the notice of and prior
to
the holding of the meeting, it shall not be necessary to deliver or mail notice
of the meeting to the transferee.
If
any
notice addressed to a stockholder at the address of such stockholder appearing
on the books of the corporation is returned to the corporation by the United
States Postal Service marked to indicate that the United States Postal Service
is unable to deliver the notice to the stockholder at such address, all future
notices or reports shall be deemed to have been duly given without further
mailing if the same shall be available to the stockholder upon written demand
of
the stockholder at the principal executive office of the corporation for a
period of one year from the date of the giving of such notice.
An
affidavit of the mailing or other means of giving any notice of any
stockholders’ meeting shall be executed by the secretary, assistant secretary or
any transfer agent of the corporation giving such notice, and shall be filed
and
maintained in the minute book of the corporation.
Business
transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
Section
6.QUORUM.
The
presence in person or by proxy of the holders of a majority of the shares
entitled to vote at any meeting of stockholders shall constitute a quorum for
the transaction of business, except as otherwise provided by statute or the
articles of incorporation. The stockholders 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 stockholders 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.
C-2
Section
7.ADJOURNED
MEETING AND NOTICE THEREOF.
Any
stockholders’ meeting, annual or special, whether or not a quorum is present,
may be adjourned from time to time by the vote of the majority of the shares
represented at such meeting, either in person or by proxy, but in the absence
of
a quorum, no other business may be transacted at such meeting.
When
any
meeting of stockholders, either annual or special, is adjourned to another
time
or place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at a meeting at which the adjournment is taken.
At
any adjourned meeting the corporation may transact any business which might
have
been transacted at the original meeting.
Section
8.VOTING.
Unless
a record date set for voting purposes be fixed as provided in Section 1 of
Article VIII of these bylaws, only persons in whose names shares entitled to
vote stand on the stock records of the corporation 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 on the business day next preceding the
day
on which the meeting is held) shall be entitled to vote at such meeting. Any
stockholder entitled to vote on any matter other than elections of directors
or
officers, may vote part of the shares in favor of the proposal and refrain
from
voting the remaining shares or vote them against the proposal, but, if the
stockholder fails to specify the number of shares such stockholder is voting
affirmatively, it will be conclusively presumed that the stockholder’s approving
vote is with respect to all shares such stockholder is entitled to vote. Such
vote may be by voice vote or by ballot; provided, however, that all elections
for directors must be by ballot upon demand by a stockholder at any election
and
before the voting begins.
When
a
quorum is present or represented at any meeting, the vote of the holders of
a
majority of the stock having voting power present in person or represented
by
proxy shall decide any question brought before such meeting, unless the question
is one upon which by express provision of the statutes or of the articles of
incorporation a different vote is required in which case such express provision
shall govern and control the decision of such question. Every stockholder of
record of the corporation shall be entitled at each meeting of stockholders
to
one vote for each share of stock standing in his name on the books of the
corporation.
Section
9.WAIVER
OF NOTICE OR CONSENT BY ABSENTSTOCKHOLDERS.
The
transactions at any meeting of stockholders, either annual or special, however
called and noticed, and wherever held, shall be as valid as though had at a
meeting duly held after regular call and notice, if a quorum be present either
in person or by proxy, and if, either before or after the meeting, each person
entitled to vote, not present in person or by proxy, signs a written waiver
of
notice or a consent to a holding of the meeting, or an approval of the minutes
thereof. The waiver of notice or consent need not specify either the business
to
be transacted or the purpose of any regular or special meeting of stockholders,
except that if action is taken or proposed to be taken for approval of any
of
those matters specified in the second paragraph of Section 4 of this
Article II, the waiver of notice or consent shall state the general nature
of such proposal. All such waivers, consents or approvals shall be filed with
the corporate records or made a part of the minutes of the meeting.
Attendance
of a person at a meeting shall also constitute a waiver of notice of such
meeting, except when the person objects, at the beginning of the meeting, to
the
transaction of any business because the meeting is not lawfully called or
convened, and except that attendance at a meeting is not a waiver of any right
to object to the consideration of matters not included in the notice if such
objection is expressly made at the meeting.
C-3
Section
10.STOCKHOLDER
ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Any
action which may be taken at any annual or special meeting of stockholders
may
be taken without a meeting and without prior notice, if a consent in writing,
setting forth the action so taken, is 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. All such consents shall be filed with
the
secretary of the corporation and shall be maintained in the corporate records.
Any stockholder giving a written consent, or the stockholder’s proxy holders, or
a transferee of the shares of a personal representative of the stockholder
of
their respective proxy holders, may revoke the consent by a writing received
by
the secretary of the corporation prior to the time that written consents of
the
number of shares required to authorize the proposed action have been filed
with
the secretary.
Section
11.PROXIES.
Every
person entitled to vote for directors or on any other matter shall have the
right to do so either in person or by one or more agents authorized by a written
proxy signed by the person and filed with the secretary of the corporation.
A
proxy shall be deemed signed if the stockholder’s name is placed on the proxy
(whether by manual signature, typewriting, telegraphic transmission or
otherwise) by the stockholder or the stockholder’s attorney in fact. A validly
executed proxy which does not state that it is irrevocable shall continue in
full force and effect unless revoked by the person executing it, prior to the
vote pursuant thereto, by a writing delivered to the corporation stating that
the proxy is revoked or by a subsequent proxy executed by, or attendance at
the
meeting and voting in person by the person executing the proxy; provided,
however, that no such proxy shall be valid after the expiration of six (6)
months from the date of such proxy, 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 seven (7) years from the date
of its execution. Subject to the above and the provisions of Section 78.355
of the Nevada General Corporation Law, 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
12.INSPECTORS
OF ELECTION.
Before
any meeting of stockholders, the board of directors may appoint any persons
other than nominees for office to act as inspectors of election at the meeting
or its adjournment. If no inspectors of election are appointed, the chairman
of
the meeting may, and on the request of any stockholder or his proxy shall,
appoint inspectors of election at the meeting. The number of inspectors shall
be
either one (1) or three (3). If inspectors are appointed at a meeting on the
request of one or more stockholders or proxies, the holders of a majority of
shares or their proxies present at the meeting shall determine whether one
(1)
or three (3) inspectors are to be appointed. If any person appointed as
inspector fails to appear or fails or refuses to act, the vacancy may be filled
by appointment by the board of directors before the meeting, or by the chairman
at the meeting.
The
duties of these inspectors shall be as follows:
(a) Determine
the number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, and the authenticity,
validity, and effect of proxies;
(b) Receive
votes, ballots, or consents;
(c) Hear
and
determine all challenges and questions in any way arising in connection with
the
right to vote;
(d) Count
and
tabulate all votes or consents;
(e) Determine
the election result; and
C-4
(f) Do
any
other acts that may be proper to conduct the election or vote with fairness
to
all stockholders.
Article
III
DIRECTORS
Section
1.POWERS.
Subject
to the provisions of the Nevada General Corporation Law and any limitations
in
the articles of incorporation and these bylaws relating to action required
to be
approved by the stockholders or by the outstanding shares, the business and
affairs of the corporation shall be managed and all corporate powers shall
be
exercised by or under the direction of the board of directors.
Without
prejudice to such general powers, but subject to the same limitations, it is
hereby expressly declared that the directors shall have the power and authority
to:
(a) Select
and remove all officers, agents, and employees of the corporation, prescribe
such powers and duties for them as may not be inconsistent with law, with the
articles of incorporation or these bylaws, fix their compensation, and require
from them security for faithful service.
(b) Change
the principal executive office or the principal business office from one
location to another; cause the corporation to be qualified to do business in
any
other state, territory, dependency, or foreign country and conduct business
within or without the State; designate any place within or without the State
for
the holding of any stockholders’ meeting, or meetings, including annual
meetings; adopt, make and use a corporate seal, and prescribe the forms of
certificates of stock, and alter the form of such seal and of such certificates
from time to time as in their judgment they may deem best, provided that such
forms shall at all times comply with the provisions of law.
(c) Authorize
the issuance of shares of stock of the corporation from time to time, upon
such
terms as may be lawful, in consideration of money paid, labor done or services
actually rendered, debts or securities cancelled, tangible or intangible
property actually received.
(d) Borrow
money and incur indebtedness for the purpose of the corporation, and 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
OF DIRECTORS.
The
number of directors which shall constitute the whole board shall not be less
than one (1) nor more than seven (7). The exact number of authorized directors
shall be set by resolution of the board of directors, within the limits
specified above. The maximum or minimum number of directors cannot be changed,
nor can a fixed number be substituted for the maximum and minimum numbers,
except by a duly adopted amendment to the articles of incorporation or by an
amendment to this bylaw. The exact number of authorized directors of the
Corporation shall be two (2), until such time as the number is changed in
accordance with this Article III, Section 2.
Section
3.QUALIFICATION,
ELECTION AND TERM OF OFFICE OF DIRECTORS.
Directors shall be elected at each annual meeting of the stockholders to hold
office until the next annual meeting, but if any such annual meeting is not
held
or the directors are not elected at any annual meeting, the directors may be
elected at any special meeting of stockholders held for that purpose, or at
the
next annual meeting of stockholders held thereafter. Each director, including
a
director elected to fill a vacancy, shall hold office until the expiration
of
the term for which elected and until a successor has been elected and qualified
or until his earlier resignation or removal or his office has been declared
vacant in the manner provided in these bylaws. Directors need not be
stockholders.
C-5
Section
4.RESIGNATION
AND REMOVAL OF DIRECTORS.
Any
director may resign effective upon giving written notice to the chairman of
the
board, the president, the secretary or the board of directors of the
corporation, unless the notice specifies a later time for the effectiveness
of
such resignation, in which case such resignation shall be effective at the
time
specified. Unless such resignation specifies otherwise, its acceptance by the
corporation shall not be necessary to make it effective. The board of directors
may declare vacant the office of a director who has been declared of unsound
mind by an order of a court or convicted of a felony. Any or all of the
directors may be removed without cause of such removal is approved by the
affirmative vote of a majority of the outstanding shares entitled to vote.
No
reduction of the authorized number of directors shall have the effect of
removing any director before his term of office expires.
Section
5.VACANCIES.
Vacancies in the board of directors, may be filled by a majority of the
remaining directors, though less than a quorum, or by a sole remaining director.
Each director so elected shall hold office until the next annual meeting of
the
stockholders and until a successor has been elected and qualified.
A
vacancy
in the board of directors exists as to any authorized position of directors
which is not then filled by a duly elected director, whether caused by death,
resignation, removal, increase in the authorized number of directors or
otherwise.
The
stockholders may elect a director or directors at any time to fill any vacancy
or vacancies not filled by the directors, but any such election by written
consent shall require the consent of a majority of the outstanding shares
entitled to vote. If the resignation of a director is effective at a future
time, the board of directors may elect a successor to take office when the
resignation becomes effective.
If
after
the filling of any vacancy by the directors, the directors then in office who
have been elected by the stockholders shall constitute less than a majority
of
the directors then in office, any holder or holders of an aggregate of five
percent or more of the total number of shares at the time outstanding having
the
right to vote for such directors may call a special meeting of the stockholders
to elect the entire board. The term of office of any director not elected by
the
stockholders shall terminate upon the election of a successor.
Section
6.PLACE
OF MEETINGS.
Regular
meetings of the board of directors shall be held at any place within or without
the State of Nevada that has been designated from time to time by resolution
of
the board. In the absence of such designation, regular meetings shall be held
at
the principal executive office of the corporation. Special meetings of the
board
shall be held at any place within or without the State of Nevada that has been
designated in the notice of the meeting or, if not stated in the notice or
there
is not notice, at the principal executive office of the corporation. Any
meeting, regular or special, may be held by conference telephone or similar
communication equipment, so long as all directors participating in such meeting
can hear one another, and all such directors shall be deemed to be present
in
person at such meeting.
Section
7.ANNUAL
MEETINGS.
Immediately following each annual meeting of stockholders, the board of
directors shall hold a regular meeting for the purpose of transaction of other
business. Notice of this meeting shall not be required.
C-6
Section
8.OTHER
REGULAR MEETINGS.
Other
regular meetings of the board of directors shall be held without call at such
time as shall from time to time be fixed by the board of directors. Such regular
meetings may be held without notice, provided the notice of any change in the
time of any such meetings shall be given to all of the directors. Notice of
a
change in the determination of the time shall be given to each director in
the
same manner as notice for special meetings of the board of
directors.
Section
9.SPECIAL
MEETINGS.
Special
meetings of the board of directors for any purpose or purposes may be called
at
any time by the chairman of the board or the president or any vice president
or
the secretary or any two directors.
Notice
of
the time and place of special meetings shall be delivered personally or by
telephone to each director or sent by first-class mail or telegram, charges
prepaid, addressed to each director at his or her address as it is shown upon
the records of the corporation. In case such notice is mailed, it shall be
deposited in the United States mail at least four (4) days prior to the time
of
the holding of the meeting. In case such notice is delivered personally, or
by
telephone or telegram, it shall be delivered personally or by telephone or
to
the telegraph company at least forty-eight (48) hours prior to the time of
the
holding of the meeting. Any oral notice given personally or by telephone may
be
communicated to either the director or to a person at the office of the director
who the person giving the notice has reason to believe will promptly communicate
it to the director. The notice need not specify the purpose of the meeting
nor
the place if the meeting is to be held at the principal executive office of
the
corporation.
Section
10.QUORUM.
A
majority of the authorized number of directors shall constitute a quorum 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
of
directors, subject to the provisions of Section 78.140 of the Nevada
General Corporation Law (approval of contracts or transactions in which a
director has a direct or indirect material financial interest),
Section 78.125 (appointment of committees), and Section 78.751
(indemnification of directors). A meeting at which a quorum is initially present
may continue to transact business notwithstanding the withdrawal of directors,
if any action taken is approved by at least a majority of the required quorum
for such meeting.
Section
11.WAIVER
OF NOTICE.
The
transactions of any meeting of the board of directors, however called and
noticed or wherever held, shall be as valid as though had at a meeting duly
held
after regular call and notice if a quorum be present and if, either before
or
after the meeting, each of the directors not present signs a written waiver
of
notice, a consent to holding the meeting or an approval of the minutes thereof.
The waiver of notice of consent need not specify the purpose of the meeting.
All
such waivers, consents and approvals shall be filed with the corporate records
or made a part of the minutes of the meeting. Notice of a meeting shall also
be
deemed given to any director who attends the meeting without protesting, prior
thereto or at its commencement, the lack of notice to such
director.
Section
12.ADJOURNMENT.
A
majority of the directors present, whether or not constituting a quorum, may
adjourn any meeting to another time and place.
Section
13.NOTICE
OF ADJOURNMENT.
Notice
of the time and place of holding an adjourned meeting need not be given, unless
the meeting is adjourned for more than twenty-four (24) hours, in which case
notice of such time and place shall be given prior to the time of the adjourned
meeting, in the manner specified in Section 8 of this Article III, to the
directors who were not present at the time of the adjournment.
C-7
Section
14.ACTION
WITHOUT MEETING.
Any
action required or permitted to be taken by the board of directors may be taken
without a meeting, if all members of the board shall individually or
collectively consent in writing to such action. Such action by written consent
shall have the same force and effect as a unanimous vote of the board of
directors. Such written consent or consents shall be filed with the minutes
of
the proceedings of the board.
Section
15.FEES
AND COMPENSATION OF DIRECTORS.
Directors and members of committees may receive such compensation, if any,
for
their services, and such reimbursement of expenses, as may be fixed or
determined by resolution of the board of directors. Nothing herein contained
shall be construed to preclude any director from serving the corporation in
any
other capacity as an officer, agent, employee, or otherwise, and receiving
compensation for such services. Members of special or standing committees may
be
allowed like compensation for attending committee meetings.
Section
16.DETERMINATION
OF MAJORITY OF AUTHORIZED NUMBER OF DIRECTORS.
Two (2)
directors shall constitute a majority of the authorized number of directors
when
the whole board of directors consists of two (2) directors pursuant to Article
III, Section 2. One (1) director shall constitute a majority of the authorized
number of directors when the whole board of directors consists of one (1)
director pursuant to Article III, Section 2.
Article
IV
COMMITTEES
Section
1.COMMITTEES
OF DIRECTORS.
The
board of directors may, by resolution adopted by a majority of the authorized
number of directors, designate one or more committees, each consisting of one
or
more directors, to serve at the pleasure of the board. The board may designate
one or more directors as alternate members of any committees, who may replace
any absent member at any meeting of the committee. Any such committee, to the
extent provided in the resolution of the board, shall have all the authority
of
the board, except with regard to:
(a) the
approval of any action which, under the Nevada General Corporation Law, also
requires stockholders’ approval or approval of the outstanding
shares;
(b) the
filing of vacancies on the board of directors or in any committees;
(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;
(e) the
amendment or repeal of any resolution of the board of directors which by its
express terms is not so amendable or repealable;
(f) a
distribution to the stockholders of the corporation, except at a rate or in
a
periodic amount or within a price range determined by the board of directors;
or
(g) the
appointment of any other committees of the board of directors or the members
thereof.
C-8
Section
2.MEETINGS
AND ACTION BY COMMITTEES.
Meetings and action of committees shall be governed by, and held and taken
in
accordance with, the provisions of Article III, Sections 6 (place of meetings),
8 (regular meetings), 9 (special meetings and notice), 10 (quorum), 11 (waiver
of notice), 12 (adjournment), 13 (notice of adjournment) and 14 (action without
meeting), with such changes in the context of those bylaws as are necessary
to
substitute the committee and its members for the board of directors and its
members, except that the time or regular meetings of committees may be
determined by resolutions of the board of directors and notice of special
meetings of committees shall also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The board of directors
may adopt rules for the government of any committee not inconsistent with the
provisions of these bylaws. The committees shall keep regular minutes of their
proceedings and report the same to the board when required.
Article
V
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 of directors,
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
appointed in accordance with the provisions of Section 3 of this Article V.
Any two or more offices may be held by the same person.
Section
2.ELECTION
OF OFFICERS.
The
officers of the corporation, except such officers as may be appointed in
accordance with the provisions of Section 3 or Section 5 of this
Article V, shall be chosen by the board of directors, and each shall serve
at the pleasure of the board, subject to the rights, if any, of an officer
under
any contract of employment. The board of directors at its first meeting after
each annual meeting of stockholders shall choose a president, a vice president,
a secretary and a treasurer, none of whom need be a member of the board. The
salaries of all officers and agents of the corporation shall be fixed by the
board of directors.
Section
3.SUBORDINATE
OFFICERS, ETC.
The
board of directors may appoint, 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 the bylaws or as the board of directors may from time to
time
determine.
Section
4.REMOVAL
AND RESIGNATION OF OFFICERS.
The
officers of the corporation shall hold office until their successors are chosen
and qualify. Subject to the rights, if any, of an officer under any contract
of
employment, any officer may be removed, either with or without cause, by the
board of directors, at any regular or special meeting thereof, or, except in
case of an officer chosen by the board of directors, by any officer upon whom
such power or removal may be conferred by the board of directors.
Any
officer may resign at any time by giving written notice to the corporation.
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.
Any such resignation is without prejudice to the rights, if any, of the
corporation under any contract to which the officer is a party.
Section
5.VACANCIES
IN OFFICES.
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 appointments to such office.
C-9
Section
6.CHAIRMAN
OF THE BOARD.
The
chairman of the board, if such an officer be elected, shall, if present, preside
at all meetings of the board of directors and exercise and perform such other
powers and duties as may be from time to time assigned to him by the board
of
directors or prescribed by the bylaws. If there is no president, the chairman
of
the board shall in addition be the chief executive officer of the corporation
and shall have the powers and duties prescribed in Section 7 of this
Article V.
Section
7.PRESIDENT.
Subject
to such supervisory powers, if any, as may be given by the board of directors
to
the chairman of the board, if there be such an officer, the president shall
be
the chief executive officer of the corporation and shall, subject to the control
of the board of directors, have general supervision, direction and control
of
the business and the officers of the corporation. He shall preside at all
meetings of the stockholders and, in the absence of the chairman of the board,
of if there be none, at all meetings of the board of directors. He shall have
the general powers and duties of management usually vested in the office of
president of a corporation, and shall have such other powers and duties as
may
be prescribed by the board of directors or the bylaws. He shall execute bonds,
mortgages and other contracts requiring a seal, under the seal of the
corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the board of directors to some other officer or agent
of
the corporation.
Section
8.VICE
PRESIDENTS.
In the
absence or disability of the president, the vice presidents, if any, in order
of
their rank as fixed by the board of directors or, if not ranked, a vice
president designated by the board of directors, 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 of directors or the bylaws, the
president or the chairman of the board.
Section
9.SECRETARY.
The
secretary shall attend all meetings of the board of directors and all meetings
of the stockholders and shall record, keep or cause to be kept, at the principal
executive office or such other place as the board of directors may order, a
book
of minutes of all meetings of directors, committees of directors and
stockholders, with the time and place of holding, whether regular or special,
and, if special, how authorized, the notice thereof given, the names of those
present at directors’ and committee meetings, the number of shares present or
represented at stockholders’ meetings, and the proceedings thereof.
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, as determined by
resolution of the board of directors, a share register, or a duplicate share
register, showing the names of all stockholders 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 meetings of
stockholders and of the board of directors required by the bylaws or by law
to
be given, and he shall keep the seal of the corporation in safe custody, as
may
be prescribed by the board of directors or by the bylaws.
Section
10.TREASURER.
The
treasurer shall keep and maintain, or cause to be kept and maintained, adequate
and correct books and records of accounts of the properties and business
transactions of the corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, retained earnings and shares.
The books of account shall at all reasonable times be open to inspection by
any
director.
C-10
The
treasurer shall deposit all moneys and other valuables in the name and to the
credit of the corporation with such depositaries as may be designated by the
board of directors. He shall disburse the funds of the corporation as may be
ordered by the board of directors, shall render to the president and directors,
whenever they request it, an account of all of his transactions as treasurer
and
of the financial condition of the corporation, and shall have other powers
and
perform such other duties as may be prescribed by the board of directors or
the
bylaws.
If
required by the board of directors, the treasurer shall give the corporation
a
bond in such sum and with such surety or sureties as shall be satisfactory
to
the board of directors for the faithful performance of the duties of his office
and for the restoration to the corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the corporation.
Article
VI
INDEMNIFICATION
OF DIRECTORS, OFFICERS, EMPLOYEES,
AND
OTHER
AGENTS
Section
1.ACTIONS
OTHER THAN BY THE CORPORATION.
The
corporation may indemnify any person who was or is a party or is threatened
to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, except
an
action by or in the right of the corporation, by reason of the fact that he
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 him in connection
with the action, suit or proceeding if he acted in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests
of
the corporation, and, with respect to any criminal action or proceeding, has
no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon
a
plea of nolo contendere or its equivalent, does not, of itself, create a
presumption that the person did not act in good faith and in a manner which
he
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, he
had
reasonable cause to believe that his conduct was unlawful.
Section
2.ACTIONS
BY THE CORPORATION.
The
corporation may indemnify any person who was or is a party or is threatened
to
be made a party to any threatened, pending or completed action or suit by or
in
the right of the corporation to procure a judgment in its favor by reason of
the
fact that he 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 amounts paid
in
settlement and attorneys’ fees, actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the corporation. Indemnification may not be made for
any claim, issue or matter as to which such a person has been adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom,
to
be liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the action
or
suit was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as the court
deems
proper.
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Section
3.SUCCESSFUL
DEFENSE.
To the
extent that a director, officer, employee or agent of the corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 1 and 2, or in defense of any claim,
issue or matter therein, he must be indemnified by the corporation against
expenses, including attorneys’ fees, actually and reasonably incurred by him in
connection with the defense.
Section
4.REQUIRED
APPROVAL.
Any
indemnification under Sections 1 and 2, unless ordered by a court or
advanced pursuant to Section 5, must 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. The
determination must be made:
(a) By
the
stockholders;
(b) By
the
board of directors by majority vote of a quorum consisting of directors who
were
not parties to the act, suit or proceeding;
(c) If
a
majority vote of a quorum consisting of directors who were not parties to the
act, suit or proceeding so orders, by independent legal counsel in a written
opinion; or
(d) If
a
quorum consisting of directors who were not parties to the act, suit or
proceeding cannot be obtained, by independent legal counsel in a written
opinion.
Section
5.ADVANCE
OF EXPENSES.
The
articles of incorporation, the bylaws or an agreement made by the corporation
may provide that the expenses of officers and directors incurred in defending
a
civil or criminal action, suit or proceeding must be paid by the corporation
as
they are incurred and in advance of the final disposition of the action, suit
or
proceeding upon receipt of an undertaking by or on behalf of the director or
officer to repay the amount if it is ultimately determined by a court of
competent jurisdiction that he is not entitled to be indemnified by the
corporation. The provisions of this section do not affect any rights to
advancement of expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law.
Section
6.OTHER
RIGHTS.
The
indemnification and advancement of expenses authorized in or ordered by a court
pursuant to this Article VI:
(a) Does
not
exclude any other rights to which a person seeking indemnification or
advancement of expenses may be entitled under the articles of incorporation
or
any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, for either an action in his official capacity or an action in another
capacity while holding his office, except that indemnification, unless ordered
by a court pursuant to Section 2 or for the advancement of expenses made
pursuant to Section 5, may not be made to or on behalf of any director or
officer if a final adjudication establishes that his acts or omissions involved
intentional misconduct, fraud or a knowing violation of the law and was material
to the cause of action.
(b) Continues
for a person who has ceased to be a director, officer, employee or agent and
inures to the benefit of the heirs, executors and administrators of such a
person.
Section
7.INSURANCE.
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 for any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of this Article VI.
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Section
8.RELIANCE
ON PROVISIONS.
Each
person who shall act as an authorized representative of the corporation shall
be
deemed to be doing so in reliance upon the rights of indemnification provided
by
this Article.
Section
9.SEVERABILITY.
If any
of the provisions of this Article are held to be invalid or unenforceable,
this
Article shall be construed as if it did not contain such invalid or
unenforceable provision and the remaining provisions of this Article shall
remain in full force and effect.
Section
10.RETROACTIVE
EFFECT.
To the
extent permitted by applicable law, the rights and powers granted pursuant
to
this Article VI shall apply to acts and actions occurring or in progress prior
to its adoption by the board of directors.
Article
VII
RECORDS
AND BOOKS
Section
1.MAINTENANCE
OF SHARE REGISTER.
The
corporation shall keep at its principal executive office, or at the office
of
its transfer agent or registrar, if either be appointed and as determined by
resolution of the board of directors, a record of its stockholders, giving
the
names and addresses of all stockholders and the number and class of shares
held
by each stockholder.
Section
2.MAINTENANCE
OF BYLAWS.
The
corporation shall keep at its principal executive office, or if its principal
executive office is not in this State at its principal business office in this
State, the original or a copy of the bylaws as amended to date, which shall
be
open to inspection by the stockholders at all reasonable times during office
hours. If the principal executive office of the corporation is outside this
state and the corporation has no principal business office in this state, the
secretary shall, upon the written request of any stockholder, furnish to such
stockholder a copy of the bylaws as amended to date.
Section
3.MAINTENANCE
OF OTHER CORPORATE RECORDS.
The
accounting books and records and minutes of proceedings of the stockholders
and
the board of directors and any committee or committees of the board of directors
shall be kept at such place or places designated by the board of directors,
or,
in the absence of such designation, at the principal executive office of the
corporation. The minutes shall be kept in written form and the accounting books
and records shall be kept either in written form or in any other form capable
of
being converted into written form.
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 this corporation and any subsidiary of this corporation. Such
inspection by a director may be made in person or by agent or attorney and
the
right of inspection includes the right to copy and make extracts. The foregoing
rights of inspection shall extend to the records of each subsidiary of the
corporation.
Section
4.ANNUAL
REPORT TO STOCKHOLDERS.
Nothing
herein shall be interpreted as prohibiting the board of directors from issuing
annual or other periodic reports to the stockholders of the corporation as
they
deem appropriate.
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Section
5.FINANCIAL
STATEMENTS.
A copy
of any annual financial statement and any income statement of the corporation
for each quarterly period of each fiscal year, and any accompanying balance
sheet of the corporation as of the end of each such period, that has been
prepared by the corporation shall be kept on file in the principal executive
office of the corporation for twelve (12) months.
Section
6.ANNUAL
LIST OF DIRECTORS, OFFICERS AND RESIDENT AGENTS.
On an
annual basis, the corporation shall file with the Secretary of State of the
State of Nevada, on the prescribed form, a list of its officers and directors
and a designation of its resident agent in Nevada.
Article
VIII
GENERAL
CORPORATE MATTERS
Section
1.RECORD
DATE.
For
purposes of determining the stockholders entitled to notice of any meeting
or to
vote or entitled to receive payment of any dividend or other distribution or
allotment of any rights or entitled to exercise any rights in respect of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) days nor less than ten (10) days prior
to the date of any such meeting nor more than sixty (60) days prior to any
other
action, and in such case only stockholders of record on the date so fixed are
entitled to notice and to vote or to receive the dividend, distribution or
allotment of rights or to exercise the rights, as the case may be,
notwithstanding any transfer of any shares on the books of the corporation
after
the record date fixed as aforesaid, except as otherwise provided in the Nevada
General Corporation Law.
If
the
board of directors does not so fix a record date:
(a) The
record date for determining stockholders entitled to notice of or to vote at
a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given or, if notice is waived, at the
close
of business on the business day next preceding the day on which the meeting
is
held.
(b) The
record date for determining stockholders entitled to give consent to corporate
action in writing without a meeting, when no prior action by the board has
been
taken, shall be the day on which the first written consent is
given.
(c) The
record date for determining stockholders for any other purpose shall be at
the
close of business on the day on which the board adopts the resolution relating
thereto, or the sixtieth (60th) day prior to the date of such other action,
whichever is later.
Section
2.CLOSING
OF TRANSFER BOOKS PROHIBITED.
In
connection with the determination of stockholders entitled to notice of any
meeting or to vote or entitled to receive payment of any dividend or other
distribution or allotment of any rights or entitled to exercise any right in
respect of any other lawful action, the board of directors shall not close
the
stock transfer books of the corporation for any reason but shall instead fix
a
record date for such determination in the manner provided in Section 1 of
Article VIII of these bylaws.
Section
3.REGISTERED
STOCKHOLDERS.
The
corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends, and to
vote
as such owner, and to hold liable for calls and assessments a person registered
on its books as the owner of shares, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part
of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of Nevada.
C-14
Section
4.CHECKS,
DRAFTS, EVIDENCES OF INDEBTEDNESS.
All
checks, drafts or other orders for payment of money, notes or other evidences
of
indebtedness, issued in the name of or payable to the corporation, shall be
signed or endorsed by such person or persons and in such manner as, from time
to
time, shall be determined by resolution of the board of directors.
Section
5.CORPORATE
CONTRACTS AND INSTRUMENTS; HOW EXECUTED.
The
board of directors, except as in the bylaws otherwise provided, may authorize
any officer or officers, agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the corporation, and such
authority may be general or confined to specific instances; and, unless so
authorized or ratified by the board of directors or within the agency 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 to any amount.
Section
6.STOCK
CERTIFICATES.
A
certificate or certificates for shares of the capital stock of the corporation
shall be issued to each stockholder when any such shares are fully paid, and
the
board of directors may authorize the issuance of certificates or shares as
partly paid provided that such certificates shall state the amount of the
consideration to be paid therefor and the amount paid thereon. All certificates
shall be signed in the name of the corporation by the president or vice
president and by the treasurer or an assistant treasurer or the secretary or
any
assistant secretary, certifying the number of shares and the class or series
of
shares owned by the stockholder. 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 stockholders upon
request and without charge, a full or summary statement of the designations,
preferences and relatives, participating, optional or other special rights
of
the various classes of stock or series thereof and the qualifications,
limitations or restrictions of such rights, and, if the corporation shall be
authorized to issue only special stock, such certificate must set forth in
full
or summarize the rights of the holders of such stock. Any or all of the
signatures on the certificate may be facsimile. In case 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.
No
new
certificate for shares shall be issued in place of any certificate theretofore
issued unless the latter is surrendered and cancelled at the same time;
provided, however, that a new certificate may be issued without the surrender
and cancellation of the old certificate if the certificate thereto fore issued
is alleged to have been lost, stolen or destroyed. In case of any such allegedly
lost, stolen or destroyed certificate, the corporation may require the owner
thereof or the legal representative of such owner to give the corporation a
bond
(or other adequate security) sufficient to indemnify it against any claim that
may be made against it (including any expense or liability) on account of the
alleged loss, theft or destruction of any such certificate or the issuance
of
such new certificate.
Section
7.DIVIDENDS.
Dividends upon the capital stock of the corporation, subject to the provisions
of the articles of incorporation, if any, may be declared by the board of
directors at any regular or special meeting pursuant to law. Dividends may
be
paid in cash, in property, or in shares of the capital stock, subject to the
provisions of the articles of incorporation.
Before
payment of any dividend, there may be set aside out of any funds of the
corporation available for dividends such sum or sums as the directors from
time
to time, in their absolute discretion, think proper as a reserve or reserves
to
meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the corporation, or for such other purpose as the directors
shall think conducive to the interest of the corporation, and the directors
may
modify or abolish any such reserves in the manner in which it was
created.
C-15
Section
8.FISCAL
YEAR.
The
fiscal year of the corporation shall be fixed by resolution of the board of
directors.
Section
9.SEAL.
The
corporate seal shall have inscribed thereon the name of the corporation, the
year of its incorporation and the words “Corporate Seal, Nevada.”
Section
10.REPRESENTATION
OF SHARES OF OTHER CORPORATIONS.
The
chairman of the board, the president, or any vice president, or any other person
authorized by resolution of the board of directors by any of the foregoing
designated officers, is authorized to vote on behalf of the corporation any
and
all shares of any other corporation or corporations, foreign or domestic,
standing in the name of the corporation. The authority herein granted to said
officers to vote or represent on behalf of the corporation any and all shares
held by the corporation in any other corporation or corporations may be
exercised by any such officer in person or by any person authorized to do so
by
proxy duly executed by said officer.
Section
11.CONSTRUCTION
AND DEFINITIONS.
Unless
the context requires otherwise, the general provisions, rules of construction,
and definitions in the Nevada General Corporation Law shall govern the
construction of the bylaws. Without limiting the generality of the foregoing,
the singular number includes the plural, the plural number includes the
singular, and the term “person” includes both a corporation and a natural
person.
Article
IX
AMENDMENTS
Section
1.AMENDMENT
BY STOCKHOLDERS.
New
bylaws may be adopted or these bylaws may be amended or repealed by the
affirmative vote of a majority of the outstanding shares entitled to vote,
or by
the written assent of stockholders entitled to vote such shares, except as
otherwise provided by law or by the articles of incorporation.
Section
2.AMENDMENT
BY DIRECTORS.
Subject
to the rights of the stockholders as provided in Section 1 of this Article,
bylaws may be adopted, amended or repealed by the board of
directors.
C-16
Dates Referenced Herein and Documents Incorporated by Reference
