Registration of Securities by a Small-Business Issuer — Form SB-2
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SB-2 Registration of Securities by a Small-Business 87 327K
Issuer
2: EX-1.1 Underwriting Agreement 28 132K
3: EX-1.2 Form of Lock-Up Agreement 2 16K
4: EX-1.3 Master Agreement Among Underwriters 10 58K
5: EX-1.4 Selected Dealers Agreement 7 30K
6: EX-3.1 Articles of Incorporation of Pci 3 19K
7: EX-3.2 By-Laws, as Amended of Pci 17 65K
8: EX-3.3 Certificate of Incorporation 36 151K
9: EX-4.1 Pages From Articles of Incorporation and Bylaws 8 35K
10: EX-4.2 Specimen Common Stock Certificate 1 9K
11: EX-4.3 Underwriter's Common Stock Purchase Warrant 11 42K
12: EX-4.4 Investment Banking Agreement 7 50K
13: EX-4.5 Letter of Intent Dated March 31, 1997 5 29K
14: EX-4.6 Form of Subscription to Acquire Warrants 20 76K
15: EX-9.1 Shareholders and Voting Agreement 27 76K
16: EX-10.1 Business Loan Agreement 8 54K
22: EX-10.12 Endorsement Agreement 05/01/97 6 31K
23: EX-10.13 Standard Sublease 53± 210K
24: EX-10.14 Agency Relationship Agreement 2 14K
25: EX-10.16 Business Consulting Agreement 2± 14K
26: EX-10.17 Employment Agreement With Steven A. Lambrecht 8 44K
27: EX-10.18 Employment Agreement With Greg P. Lambrecht 9 47K
28: EX-10.19 Employment Agreement With Colin A. Jones 9 46K
17: EX-10.2 Asset Purchase Agreement 12/31/96 21 60K
29: EX-10.21 Settlement & Full Release of Equity 34 143K
30: EX-10.22 Stock Sales Agreement 06/20/97 4 22K
18: EX-10.3 Asset Purchase Agreement 12/31/96 21 61K
19: EX-10.4 Promissory Note Between C. Jones and Pci 2 16K
20: EX-10.5 Promissory Note Between G. Lambrecht and Pci 2 16K
21: EX-10.6 Management Agreement 01/01/97 4 24K
31: EX-11.1 Computation of Earnings Per Share 1 9K
32: EX-16.1 Response Letter From Semple & Cooper, LLP 1 11K
33: EX-21.1 Subsidiary List 1 9K
34: EX-27.1 Financial Data Schedule 1 12K
EX-3.2 — By-Laws, as Amended of Pci
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AMENDED AND RESTATED BYLAWS
OF
PREMIUM CIGARS INTERNATIONAL, LTD.
Adopted as of the 3rd day of May, 1997.
ARTICLE I - OFFICES............................................................4
Section 1. Known Place of Business....................................4
Section 2. Other Offices..............................................4
ARTICLE II - SHAREHOLDERS......................................................4
Section 1. Annual Meeting.............................................4
Section 2. Special Meeting............................................4
Section 3. Place of Meeting...........................................4
Section 4. Notice of Meeting..........................................4
Section 5. Fixing Date for Determination of Shareholders Record.......5
Section 6. Voting Record..............................................5
Section 7. Quorum and Manner or Acting................................5
Section 8. Voting of Shares of Stock..................................6
Section 9. Organization...............................................7
Section 10. Order of Business..........................................7
Section 11. Election of Directors......................................7
Section 12. Action By Shareholders Without a Meeting...................7
Section 13. Irregularities.............................................7
ARTICLE III - BOARD OF DIRECTORS...............................................7
Section 1. General Powers.............................................7
Section 2. Number and Term of Office..................................7
Section 3. Place of Meeting...........................................8
Section 4. First Meeting..............................................8
Section 5. Regular Meetings...........................................8
Section 6. Special Meetings; Notice...................................8
Section 7. Quorum and Manner of Acting................................8
Section 8. Organization...............................................9
Section 9. Action by Directors Without a Meeting......................9
Section 10. Resignations...............................................9
Section 11. Removal of Directors.......................................9
Section 12. Vacancies..................................................9
Section 13. Compensation...............................................9
ARTICLE IV - OFFICERS.........................................................10
Section 1. Number....................................................10
Section 2. Election and Term of Office...............................10
Section 3. Agents....................................................10
Section 4. Removal...................................................10
Section 5. Resignations..............................................10
Section 6. Vacancies.................................................10
Section 7. Chairman of the Board.....................................10
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Section 8. President/Chief Executive Officer..........................11
Section 9. Vice President.............................................11
Section 10. Secretary..................................................11
Section 11. Treasurer..................................................12
Section 12. Assistant Officers.........................................12
ARTICLE V - COMMITTEES........................................................12
Section 1. Executive Committee: How Constituted and Powers............12
Section 2. Executive Committee: Organization..........................12
Section 3. Executive Committee: Meetings..............................13
Section 4. Executive Committee: Quorum and Manner of Acting...........13
Section 5. Other Committees...........................................13
Section 6. Resignations...............................................13
Section 7. Vacancies..................................................14
Section 8. Compensation...............................................14
Section 9. Dissolution of Committees: Removal of Committee Members....14
ARTICLE VI - CONTRACTS, CHECKS, DRAFTS, BANK
ACCOUNTS, SECURITIES OF OTHER CORPORATIONS...............................14
Section 1. Execution of Contracts.....................................14
Section 2. Attestation................................................14
Section 3. Loans......................................................14
Section 4. Checks, Drafts.............................................15
Section 5. Deposits...................................................15
Section 6. Proxies in Respect of Stock or Other Securities of Other
Corporations...............................................15
ARTICLE VII - STOCK...........................................................15
Section 1. Certificates...............................................15
Section 2. Transfers of Stock.........................................16
Section 3. Regulations................................................16
ARTICLE VIII - DIVIDENDS......................................................16
ARTICLE IX - SEAL.............................................................16
ARTICLE X - AMENDMENTS........................................................16
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ARTICLE I - OFFICES
Section 1. Known Place of Business. The known place of business of the
Corporation, which shall also be known as its principal place of business, shall
be at the address so designated in the Articles of Incorporation, or if no
address is so designated, at the address of the Corporation's statutory agent as
set forth in the Articles of Incorporation. The address of the Corporation's
known place of business may be changed from time to time by the Board in the
manner provided in the Arizona Revised Statutes and without amending the
Articles of Incorporation.
Section 2. Other Offices. In addition to its known place of business, the
Corporation may maintain offices at such other place or places, either within or
without the State of Arizona, as may be designated from time to time by the
Board, or as the business of the Corporation may require.
ARTICLE II - SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the shareholders shall be
held on the first Monday of April of each calendar year, or if that day is a
legal holiday in Arizona, then on the next day thereafter which is not a legal
holiday, for the purpose of electing Directors and for the transaction of other
business as may properly come before the meeting. If the election of Directors
is not held on the day designated herein for any annual meeting of the
shareholders, or any adjournment thereof, the Directors shall cause the election
to be held at a special meeting of the shareholders as soon thereafter as
convenient.
Section 2. Special Meeting. Special meetings of the shareholders may be
called for any purpose or purposes at any time by the Chairman of the Board,
President, a Vice President or the Board,and shall be called by the Chairman of
the Board or President at the request of the holders of not less than one-tenth
(1/10) of all outstanding stock of the Corporation entitled to vote at such
meeting, or otherwise as provided by the Arizona Revised Statutes and Section 12
of Article II of these Bylaws.
Section 3. Place of Meeting. Annual and special meetings of the
shareholders shall be held at the principal place of business of the
Corporation, unless a different place, either within or without the State or
Arizona, is specified in the notice of such meeting, or in the event of a waiver
of notice of such meeting, in such waiver of notice.
Section 4. Notice of Meeting. Written notice stating the place, date and
hour of the meeting and, in the case of a special meeting, the purposes for
which the meeting is called, shall be delivered to each shareholder of record
entitled to vote at such meeting not less than ten (10) nor more than sixty (60)
days before the date of the meeting, either personally or by mail, by an officer
of the Corporation at the direction of the person or persons calling the
meeting. If mailed, notice shall be deemed to be delivered when mailed to the
shareholder at his or her address as it appears on the stock transfer books of
the Corporation. Notice need not be given of an adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken,
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provided that such adjournment is for less than thirty (30) days and further
provided that a new record date is not fixed for the adjourned meeting, in
either of which events, written notice of the adjourned meeting shall be given
to each shareholder of record entitled to vote at such meeting. At any adjourned
meeting, any business may be transacted which might have been transacted at the
meeting as originally noticed. A written waiver of notice, whether given before
or after the meeting to which it relates , shall be equivalent to the giving of
notice of such meeting to the shareholder or shareholders signing such waiver.
Attendance of a shareholder at a meeting shall constitute a waiver of notice of
such meeting, except when the shareholder attends for the express purpose of
objecting to the transaction of any business because the meeting is not lawfully
called or convened.
Section 5. Fixing Date for Determination of Shareholders Record. In order
that the Corporation may determine the shareholders entitled to notice of or to
vote at any meeting of shareholders or any adjourment thereof, or to express
consent to corporate action in writing without a meeting, or to receive payment
of any dividend or other distribution or allotment of any rights, or to exercise
any rights in respect of any other change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board may fix in advance a
record date, which shall not be more than seventy (70) nor less than ten (10)
days prior to the date of such meeting or such action, as the case may be. If
the Board has not fixed a record date for determining the shareholders entitled
to notice of or to vote at a meeting of shareholders, the record date shall be
at four o'clock in the afternoon on the day before the day on which notice is
given, or if notice is waived, at the commencement of the meeting. If the Board
has not fixed a record date for determining shareholders for any other purpose,
the record date shall be at the close of business on the day before the Board
adopts the resolution relating thereto. A determination of shareholders of
record entitled to notice of or to vote at a meeting of shareholders shall apply
to any adjournment of the meeting if such adjournment or adjournments do not
exceed thirty (30) days in the aggregate; provided, however, that the Board may
fix a new record date for the adjourned meeting.
Section 6. Voting Record. The Secretary or other officer having charge of
the stock transfer books of the Corporation shall make, or cause to be made, a
complete record of the shareholders entitled to vote at a meeting of
shareholders or any adjourment thereof, arranged in alphabetical order, with the
address of and the number of shares held by each shareholder. Such record shall
be produced and kept open at the time and place of the meeting and shall be
subject to inspection by the shareholders during the entire time of the meeting
for the purposes thereof. Failure to comply with the requirements of this
Section 6, however, shall not affect the validity of any action taken at any
such meeting.
Section 7. Quorum and Manner of Acting. At any meeting of the shareholders,
the presence, in person or by proxy, of the holders of a majority of the
outstanding stock entitled to vote shall constitute a quorum. All shares
represented and entitled to vote on any single subject matter which may be
brought before the meeting shall be counted for quorum purposes. Only those
shares entitled to vote on a particular subject matter shall be counted for the
purpose of voting on that subjict matter, Business may be conducted once a
quorum is present and may continue to be conducted until adjourment without
rescheduling, notwithstanding the withdrawal or temporary
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absence of shareholders leaving less than a quorum. Except as otherwise provided
in the Arizona Revised Statutes, the affirmative vote of the holders of a
majority of the shares of stock then represented at the meeting and entitled to
vote on the subject matter under consideration shall be the act of the
shareholders; provided, however, that if the shares of stock then represented
are less than the number required to consitute a quorum, the affirmative vote
must be such as would constitute a majority if a quorum were present, except
that the affirmative vote of the holders of a majority of the shares of stock
then present is sufficient in all cases to adjourn a meeting.
Section 8. Voting of Shares of Stock. Each shareholder shall be entitled to
one vote or corresponding fraction thereof for each share stock or fraction
thereof standing in its name on the books of the Corporation on the record date.
A shareholder may vote either in person or by proxy executed in writing by the
shareholder or by its duly authorized attorney in fact, but no such proxy shall
be voted or acted upon after eleven (11) months from the date of its execution
unless the proxy provides for a longer period. Shares of its own stock belonging
to the Corporation or to another corporation, if a majority of the shares of
stock entitled to vote in the election of directors of such other corporation is
held directly or indirectly by the Corporation, shall neither be entitled to
vote nor counted for quorum purposes; provided however, that the foregoing shall
not be construed as limiting the right of the Corporation to vote its own stock
when held by it in a fiduciary capacity. Shares of stock held by a trustee,
other than a trustee in bankruptcy, may not be voted by such trustee without a
transfer of such shares into its name. Shares of stock held by or under the
control of a receiver or trustee in bankruptcy may be voted by such receiver or
trustee, either in person or by proxy, without a transfer thereof into its name
if authority so to do is contained in an appropriate order of the court by which
such receiver or trustee was appointed. A person whose stock is pledged shall be
entitled to vote such stock unless the stock has been transferred into the name
of the pledgee on the books of the Corporation, in which case only the pledgee
or its proxy shall be entitled to vote such stock. If shares of stock stand of
record in the names of two or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by the entirety, tenants
by community property or otherwise, or if two or more persons have the same
fiduciary relationship respecting the same shares of stock, unless the
Corporation is given written notice in the manner required by the Arizona
Revised Statutes to the contrary and is furnished with a copy of the instrument
or order appointing them or creating the relationship wherein it is so provided,
their acts with respect to voting shall have the following effect: (I) if only
one votes, his or her act binds all;(ii) if more than one vote, the act of the
majority so voting binds all; (iii) if more than one vote, but the vote is
evenly split on any particular matter, each faction may vote the shares in
question proportionally. If any tenacy is held in unequal interests, the
majority or even split, for the purpose of the preceding sentence, shall be a
majority or even split in interst. Unless demanded by a shareholder present in
person or by proxy at any meeting of the sharehloders and entitled to vote
thereat, or unless so directed by the chairman of the meeting, the vote thereat
on any question need not be by ballot. If such demand or direction is made, a
vote by ballot shall be taken, and each ballot shall be signed by the
shareholder voting, or by its proxy, and shall state the number of shares voted.
6
Section 9. Organization. At such meeting of the shareholders, the Chairman
of the Board, or, if he or she is absent thereform, the President, or , if he or
she is absent thereforom, another officer of the Corporation chosen as chairman
of such meeting by a majority in voting interest of the shareholders present in
person or by proxy and entitled to vote thereat, or, if all the officers of the
Corporation are absent thereform, a shareholder of record so chosen, shall act
as chairman of the meeting and preside thereat. The Secetary, or, if he or she
is absent from the meeting or is required pursuant to the provisions of this
Section 9 to act as chariman of such meeting, the person (who shall be an
Assisant Secretary, if any and if present) whom the chairman of the meeting
shall appoint shall act as secretaty of the meeting and keep the minutes
thereof.
Section 10. Order of Business. The order of business at each meeting of the
shareholders shall be determined by chairman of such meeting, but the order of
business may be changed by the vote of a majority in voting interest of those
present in person or by proxy at such meeting and entitled to vote thereat.
Section 11. Election of Directors. At each election of Directors, each
shareholder entitled to vote thereat shall have the right to vote, in person or
by proxy, the number of shares of stock owned by such shareholder for as many
persons as there are Directors to be elected and for whose election he or she
has a right to vote, or to cumulate its votes by giving one candidate as many
votes as the number of such Directors multiplied by the number of its shares of
stock shall equal, or by distributing such votes on the same principle among any
number of candidates. The candidates receiving the greatest number of votes, up
to the number of Directors to be elected, shall be the Directors.
Section 12. Action By Shareholders Without a Meeting. Any action required
or permitted to be taken at a meeting of the shareholders may be taken without a
meeting, without notice and without a vote, if a consent in writing, setting
forth the action so taken, is signed by all shareholders entitled to vote with
respect to the subject matter thereof.
Section 13. Irregularities. All informalities and irregularities at any
meeting of the shareholders with respect to calls, notices of meeting, the
manner of voting, the form of proxies and credentials, and the method of
ascertaining those present shall be deemed waived if no objection is made at the
meeting.
ARTICLE III - BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the Corporation
shall be managed by the Board of Directors.
Section 2. Number and Term of Office. Subject to the requirements of the
Arizona Revised Statutes, the Board may from time to time determine the number
of Directors. Untill the Board shall otherwise determine, the number of
Directors shall be that number comprising the initial Board as set forth in the
Articles of Incorporation. Each Director shall hold office until his or her
7
successor is elected, or until his or her death, or until his or her earlier
resignation or removal in the manner hereinafter provided.
Section 3. Place of Meeting. The Board may hold its meetings at such place
or places, within or without the State of Arizona, as the Board may from time to
time by resolution determine or as shall be designated in any notices or waivers
of notice thereof. Any such meeting, whether regular or special, may be held by
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting in such manner shall consitute presence in person at such meeting.
Section 4. First Meeting. As soon as practicable after each annual election
of Directors and on the same day, the Board may meet for the purpose of
organization and the transaction of other business at the place where regular
meetings of the Board are held, and no notice of such meeting shall be necessary
in order to legally hold the meeting, provided that a quorum is present. If such
meeting is not held as provided above, the meeting may be held at such time and
place as shall be specfied in notice given as hereinafter provided for a special
meeting of the Board, or in the event of waiver of notice as specified in the
written waiver of notice.
Section 5. Regular Meetings. Regular meetings of the Board may be held
without notice at such times as the Board shall from time to time by resolution
determine. If any day fixed for a regular meeting shall be legal holiday in
Arizona, the meeting that would otherwise be held on that day shall be held at
the same hour on the next succeeding business day.
Section 6. Special Meetings: Notice. Special meetings of the Board shall be
held whenever called by the Chairman of the Board, the President, the Secretary
or a majority of the Directors at the time in office. Notice shall be given, in
the manner hereinafter provided, of each such special meeting, which notice
shall state the time and place of such meeting, but need not state the purposes
thereof. Except as otherwise provided in Section 7 of this Article III, notice
of each such meeting shall be mailed to each Director, addressed to him or her
at his or her residence or usual place of business, at least two (2) days before
the day on which such meeting is to be held, or shall be sent addressed to him
or her at such place by telegraph, cable, wireless or other form of recorded
communication or delivered personally or by telephone not later than the day
before the day on which such meeting is to be held. A written waiver of notice,
whether given before or after the meeting to which it relates, shall be
equivalent to the giving of notice of such meeting to which it relates, shall be
equivalent to the giving of notice of such meeting to the Director or Directors
signing such waiver. Attendance of a Director at a special meeting of the Board
shall consitute a waiver of notice of such meeting, except when he or she
attends the meeting for the express purpose of objecting to the transaction of
any business because the meeting is not lawfully called or convened.
Section 7. Quorum and Manner of Acting. A majority of the whole Board shall
be present in person at any meeting of the Board in order to constitute a quorum
for the transaction of business at such meeting, and except as otherwise
specified in these Bylaws, and except also as otherwise expressly provided by
the Arizona Revised Statutes, the vote of a majority of the Directors
8
present at any such meeting at which a quorum is present shall be the act of the
Board. In the absence of a quorum from any such meeting, a majority of the
Directors present thereat may adjourn such meeting from time to time to another
time or place, without notice other than announcement at the meeting, until a
quorum shall be present thereat. The Directors shall act only as a board and the
individual Directors shall have no power as such.
Section 8. Organization. At each meeting of the Board, the Chairman of the
Board, or, if he or she is absent therefrom, the President, or if he is absent
therefrom, a Director chosen by a majority of the Directors present thereat,
shall act as chairman of such meeting and preside thereat. The Secretary, or if
he or she is absent, the person (who shall be an Assistant Secretary, if any and
if present) whom the chairman of such meeting shall appoint, shall act as
Secretary of such meeting and keep the minutes thereof.
Section 9. Actions by Directors Without a Meeting. Any action required or
permitted to be taken at a meeting of the Board may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, is signed by all Directors entitled to vote with respect to
the subject matter thereof.
Section 10. Resignations. Any Director may resign at any given time by
giving written notice of his or her resignation to the Corporation. Any such
resignation shall take effect at the time specified therein, or, if the time
when it shall become effective is not specified therein, it shall take effect
immediatedy upon its receipt by the President or the Secretary; and, unless
otherwise specified therein, the acceptance of such registration shall not be
necessary to make it effective.
Section 11. Removal of Directors. Directors may be removed, with or without
cause, as provided from time to time by the Arizona Revised Statutes as then in
effect.
Section 12. Vacancies. Any vacancy occurring in the Board, and any newly
created directorship, may be filled by a majority of the Directors then in
office, including any Director whose resignation from the Board becomes
effective at a future time, provided that the number of Directors then in office
is not less than a quorum of the whole Board, or by a sole remaining Director.
If at any time the Corporation has no Directors in office, any officer or any
shareholder or any fiduciary entrusted with responsibility for the person or
estate of a shareholder may call a special meeting of the shareholders for the
purpose of filling cacancies in the Board.
Section 13. Compensation. Unless otherwise expressly provided by resolution
adopted by the Board, no Director shall receive any cpmpensation for his or her
services as a Director. The Board may at any time and from time to time by
resolution provide that Directors shall be paid a fixed sum for attendance at
each meeting of the Board or a stated salary as Director. In addition, the Board
may at any time and from time to time by resolution provide that Directors hall
be paid their actual expenses, if any, of attendance at each meeting of the
Board. Nothing in this section shall be construed as precluding any Director
from serving the Corporation in any other capacity and receiving compensation
therefor, but the Board may by resolution provide that any Director receiving
9
compensation for his or services to the Corporation in any other capacity shall
not receive additional compensation for his or her services as a Director.
ARTICLE IV - OFFICERS
Section 1. Number. The Corporation shall have the following officers: a
Chairmanof the Board (who shall be a Director), a President, a Vice President, a
secretary, and a Treasurer. At the discretion of the Board, the Corporation may
also have additional Vice Presidents, one or more Assistant Vice Presidents, one
or more Assistant Secretaries and one or more Assistant Treasurers. Any two or
more offices may be held by the same person, except the offices of President and
Secretary.
Section 2. Election and Term of Office. The offices of the Corporation
shall be elected annually by the Board. Each such officer shall hold office
until his or her successor is duly elected or appointed or until his or her
earlier death or resignation or removal in the manner hereinafter provided.
Section 3. Agents. In addition to the officers mentioned in Section 1 of
this Article IV, the Board may appoint such agents as the Board may deem
necessary or advisable, each of which agents shall have such authority and
perform such duties as are provided in these Bylaws or as the Board may from
time to time determine. The Board may delegate to any officer or to any
committee the power to appoint or remove any such agents.
Section 4. Removal. Any officer may be removed, with or without cause, at
any time by a resolution adopted by a majority of the whole Board.
Section 5. Resignations. Any officer may resign at any time by giving
written notice of his or her resignation to the Board, the Chairman of the
Board, the President or the Secretary. Any such resignation shall take effect at
the time specified therein, or, if the time when it shall become effective is
not specified therin, it shall take effect immediately upon its receipt by the
Board, the Chairman of the Board, the President or the Secretary; and, unless
otherwise specified therin, the acceptance of such resignations shall not be
necessary to make if effective.
Section 6. Vacancies. A vacancy in any office due to death, resignation,
removal, disqualification or any other cause may be filled for the unexpired
portion of the term thereof by the Board.
Section 7. Chairman of the Board. The Chairman of the Board shall; (a)
preside at all meetings of the stockholders and at all meetings of the Board;
(b) make a report of the state of the business of the Corporation at each annual
meeting of the stockholders and (c) see that all orders and resolutions of the
Board are carried into effect. In general, the Chairman of the Board shall
perform all duties incident to the office of the Chairman of the Board and such
other duties as from time to time may be assigned to him or her by the Board.
10
Section 8. President/ Chief Executive Officer. The President shall be the
Chief Executive Oficer of the Corporation and shall have, subject to the control
of the Board, general and active supervision and direction over the business and
affairs of the Corporation and over its several officers. At the request of the
Chairman of the Board, or in case of his or her absence or inability to act, the
president shall perform the duties of the Chairman of the Board and, when so
acting, shall have all the powers of, and be subject to all the restrictions
upon, the Chairman of the Board. The President may sign, with the Secretary or
Assistant Secretary, certificates for stock of the Corporation. He may sign,
execute and deliver in the name of the Corporation all deeds, mortgages, bonds,
contracts or other instruments authorized by the Board, except in cases where
the signing, execution or delivery thereof is expressly delegated by the Board
or by these Bylaws to some other officer or agent of the Corporation or where
any of them are required by law otherwise to be signed, executed or delivered,
and he may cause the corporate seal, if any, to be affixed to any instrument
which requires it. In general, the President shall perform all duties incident
to the office of the President and such other duties as from time to time may be
assigned to him or her by the Board.
Section 9. Vice President. The Vice President and any additional Vice
Presidents shall have such powers and perform such duties as the Chairman of the
Board, the President or the Board may from time to time prescribe and shall
perform such other duties as may be prescribed by these Bylaws. At the request
of the President, or in case of his or her absence or inability to act, the Vice
President shal perform the duties of the President and, when so acting, shall
have all the powers of, and be subject to al the restrictions upon, the
President, In the event that there is more than one Vice President, the Board
shall designate which Vice President is to act for the President.
Section 10. Secretary. The Secretary shall: (a) record all the proceedings
for the meetings of the shareholders, the Board and the Executive Committee, if
any in one or more books kept for that purpose; (b) see that all notices are
duly given in accordance with the provisions of these Bylaws or a required by
law; (c) be the custodian of all contracts, deeds, documents, all other indicia
of the title to properties owned by the Corporation and of its other corporate
records (except accounting records) and of the corporate seal, if any, and affix
such seal to all documents the execution of which on behalf of the Corporation
under its seal is duly authorized; (d) sign, with the Chairman of the Board, the
President or a Vice President, certificates for stock of the Corporation; (e)
have charge, directly or through the transfer clerk or transfer clerks, transfer
agent or transfer agents and registrar or registrars appointed as provided in
Section 3 of Article VII of these Bylaws, of the issue, transfer and
registration of certificates for stock of the Corporation and of the records
thereof, such records to be kept in such manner as to show at any time the
amount of the stock of the Corporation issued and outstanding, the manner in
which and the time when such stock was paid for, the names, alphabetically
arranged, and the addressed of the holders of record thereof, the number of
shares held by each, and the time when each became a holder of record; (f) upon
request, exhibit or cause to be exhibited at all reasonable times to any
Director such records of the issue, transfer and registration of the
certificates for stock of the Corporation; (g) see that the books, reports,
statements, certificates and all other documents and records required by law are
properly kept and filed; and (h) see that the duties prescribed by Section 6 of
Article II of these Bylaws are performed. In general, the Secretary
11
shall perform all duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him or her by the Chairman of the
Board, the President or the Board.
Section 11. Treasurer. If required by the Board, the Treasurer shall give a
bond for the faithful discharge of his or her duties in such sum and with such
surety of sureties as the Board shall determine. The Treasurer shall: (a) have
charge and custody of, and be responsible for, all funds, securities, notes and
valuable effects of the Corporation; (b) receive and give receipt for moneys due
and payable to the Corporation from any sources whatsoever; (c) deposit all such
moneys to the credit of the Corporation or otherwise as the Board, the Chairman
of the Board, or the President shall direct in such banks, trust companies or
other depositories as shall be selected in accordance with the provisions of
Article VI of these Bylaws; (e) be responsible for the accuracy of the amounts
of, and cause to be preserved proper vouchers for, all moneys so disbursed; (f)
have the right to require from time to time reports or statements giving such
information as he or she may desire with respect to any and all financial
transactions of the Chairman of the Board, the President or the Board, whenever
they, respectively, shall request him or her to so do, an account of the
financial condition of the Corporation and of all his or her transactions as
Treasurer; and (h) upon request, exhibit or cause to be exhibited at all
reasonable times the cash books and other records to the Chairman of the Board,
the President or any of the Directors of the Corporation. In general, the
Treasurer shall perform all duties incident to the office of Treasurer and such
other duties as from time to time may be assigned to him or her by the Chairman
of the Board, the President or the Board.
Section 12. Assistant Officers. Any persons elected as assistant officers
shall assist in the performance of the duties of the designated office and such
other duties as shall be assigned to them by the Vice President, Secretary or
Treasurer, as the case may be, or by the Board or the President.
ARTICLE V - COMMITTEES
Section 1. Executive Committee: How Constituted and Powers. The Board, by
resolution adopted by a majority of the whole Board, may designate one or more
of the Directors then in office, who shall include the Chairman of the Board, to
constitute an Executive Committee, which shall have and may exercise between
meetings of the Board all the delegable powers of the Board to the extent not
expressly prohibited by the Arizona Revised Statutes or by resolution of the
Board. The Board may designate one or more Directors as alternate members of the
Committee who may replace any absent or disqualified member at any meeting of
the Committee. Each member of the Executive Committee shall continue to be a
member thereof only during the pleasure of a majority of the whole Board.
Section 2. Executive Committee: Organization. The Chairman of the Board
shall act as chairman at all meetigs of the Executive Committee and the
Secretary shall act as secretary thereof. In case of the absence from any
meeting of the Chairman of the Board or the Secretary, the Committee may appoint
a chairman or secretary, as the case may be, of the meeting.
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Section 3. Executive Committee: Meetings. Regular meetings of the Executive
Committee may be held without notice on such days and at such places, within or
without the State of Arizona, as shall be fixed by resolution adopted by a
majority of the Committee and communicated to all its members. Special meetins
of the Committee shall be held whenever called by the Chairman of the Board or a
majority of the members thereof then in office. Notice of each such special
meeting of the Executive Committee shall be given in the manner provided in
Section 6 of Article III of these Bylaws for special meetings of the Board.
Notice of any such meeting of the Executive Committee, however need not be given
to any member of the Committee if waived by him or her in writing or by
telegraph, cable, wireless or other form of recorded communication either before
or after the meeting, or if he or she is present at such meeting, except when he
or she attends for the express purpose of objecting to the transaction of any
business because the meeting is not lawfully called or convened. Subject to the
provisions of this Article V, the Committee, by resolution adopted by a majority
of the whole Committee, shall fix its own rules of proceedure and it shall keep
a record of its proceedings and report them to the board at the next regular
meeting thereof after such proceedings have been taken. All such proceedings
shall be subject to revision or alteration by the Board; provided, however, that
third parties shall not be prejudiced by any such revision or alteration.
Section 4. Executive Committee: Quorum and Manner of Acting. A majority of
the Executive Committee shall constitute a quorum for the transaction of
business, and, except as specified in Section 3 of this Article V, the act of a
majority of those present at a meeting thereof at which a quorum is present
shall be the act of the Committee. The members of the Committee shall act only
as a committee, and the individual members shall have no power as such.
Section 5. Other Committees. The Board, by resolution adopted by a majority
of the whole Board, may constitute other committees, which shall in each case
consist of one or more of the Directors and, at the discretion of the Board,
such officers who are not Directors. The Board may designate one or more
Directors or officers who are not Directors as alternate members of any
committee who may replace any absent or disqualified member at any meeting of
the committee. Each such committee shall have and may exercise such powers as
the Board may determine and specify in the respective resolutions appointing
them; provided, however, that (a) unless all of the members of any committee
shall be Directors, such committee shall not have authority to exercise any of
the powers of the Board in the management of the business and affairs of the
Corporation, and (b) if any committee shall have the power to determine the
amounts of the respective fixed salaries of the officers of the Corporation or
any of them, such committee shall not consist of not less than three (3) members
and none of its members shall have any vote in the determination of the amount
that shall be paid to him or her as a fixed salary. A majority of all the
members of any such committee may fix its rules of procedure, determine its
action and fix the time and place, whether within or without the State of
Arizona, of its meetings and specify what notice thereof, if any, shall be
given, unless the Board shall otherwise by resolution provide.
Section 6. Resignations. Any member of the Executive Committee or any other
committee may resign therefrom at any time by giving written notice of his or
her resignation to the Chairman of the Board, the President or the Secretary.
Any such resignation shall take effect at the
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time specified therein, or if the time when it shall become effective is not
specified therein, it shall take effect immediately upon its receipt by the
Chairman of the Board, the President or the Secretary; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 7. Vacancies. Any vacancy in the Executive Committee or any other
committee shall be filled by the vote of a majority of the whole Board.
Section 8. Compensation. Unless otherwise expressly provided by resolution
adopted by the Board, no member of the Executive Committee or any other
committee shall receive any compensation for his or her services as a committee
member. The Board may at any time and from time to time by resolution provide
that committee members shall be paid a fixed sum for attendance at each
committee meeting or a stated salary as a committee member. In addition, the
Board may at any time and from time to time by re solution provided that such
committee members shall be paid for their actual expenses, if any, of attendance
at each committee meeting. Nothing in this section shall be construed as
precluding any committee member from serving the Corporation in any other
capacity and receiving compensation therefor, but the Board may by resolution
provide that any committee member receiving compensation for his or her services
to the Corporation in any other capacity shall not receive additional
compensation for his or he r services as a committee member.
Section 9. Dissolution of Committees; Removal of Committee Members. The
Board, by resolution adopted by a majority of the whole Board, may, with or
without cause, dissolve the Executive Committee or any other committee, and,
with or without cause, remove any member thereof.
ARTICLE VI I CONTRACTS, CHECKS, DRAFTS, BANK
ACCOUNTS, SECURITIES OF OTHER CORPORATIONS
Section 1. Execution of Contracts. Except as otherwise required by law or
by these Bylaws, any contract or other instrument may be executed and delivered
in the name of the Corporation and on its behalf by the Chairman of the Board,
the President or a Vice President. In addition, the Board may authorize any
other officer or officers or agents to execute and deliver any contract or other
instrument in the name of the Corporation and on its behalf, and such authority
may be general or confined to specific instances as the Board may by resolution
determine.
Section 2. Attestation Any Vice President, the Secretary, or any Assistant
Secretary may attest the execution of any instrument or document by the Chairman
of the Board, the President or any other duly authorized officer or agent of the
Corporation and may affix the corporate seal, if any, in witness thereof, but
neither such attestation nor the affixing of a corporate seal shall be requisite
to the validity of any such document or instrument.
Section 3. Loans. Unless the Board shall otherwise determine, the Chairman
of the Board or the President, acting together with any one of the following
officers, to-wit: the Vice
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President, the Treasurer or the Secretary, may effect loans and advances at any
time for the Corporation from any bank, trust company or other institution or
from any firm or individual and, for such loans and advances, may make, execute
and deliver promissory notes or other evidences of indebtedness of the
Corporation , but no officer or officers shall mortgage, pledge, hypothecate or
otherwise transfer for security any property owned or held by the Corporation
except when authorized by a resolution adopted by the Board.
Section 4. Checks, Drafts. All checks, drafts, orders for the payment of
money, bills of lading, warehouse receipts, obligations, bills of exchange and
insurance certificates shall be signed or endorsed (except endorsements for
collection for the account of the Corporation or for deposit to its credit,
which shall be governed by the provisions of Section 5 of this Article VI) by
such officer or officers or agent or agents of the Corporation and in such
manner as shall from time to time be determined by resolution of the Board.
Section 5. Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation or
otherwise as the Board, the Chairman of the Board or the President shall direct
in general or special accounts at such banks, trust companies, savings and loan
associations, or other depositories as the Board may select or as may be
selected by any officer or officers or agent or agents of the Corporation to
whom power in that respect has been delegated by the Board. For the purpose of
deposit and for the purpose of collection for the account of the Corporation,
checks, drafts and other orders for the payment of money which are payable to
the order of the Corporation may be endorsed, assigned and delivered by any
officer or agent of the Corporation. the Board may make such special rules and
regulations with respect to such accounts, not inconsistent with the provisions
of these Bylaws, as it may deem expedient.
Section 6. Proxies in Respect of Stock or Other Securities of Other
Corporations. Unless otherwise provided by resolution adopted by the Board, the
Chairman of the Board, the President or any Vice President may exercise in the
name and on behalf of the Corporation the powers and rights which the
Corporation may have as the holder of stock or other securities in any other
corporation, including without limitation the right to vote or consent with
respect to such stock or other securities.
ARTICLE VII - STOCK
Section 1. Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed by or in the name of the Corporation by
the Chairman of the Board , the President or a Vice President and by the
Secretary or an Assistant Secretary. The signatures of such officers upon such
certificate may be facsimiles if the certificate is manually signed by a
transfer agent or registered by a registrar, other than the Corporation itself
or one of its employees. If any officer who has signed or whose facsimile
signature has been placed upon a certificate had ceased for any reason to be
such officer prior to issuance of the certificate, the certificate may be issued
with the same effect as if that person were such officer at the date of issue.
All certificates for stock of the Corporation shall be consecutively numbered,
shall state the number of shares represented thereby and shall
15
otherwise be in such form as shall be determined by the Board, subject to such
requirements as are imposed by the Arizona Revised Statutes. The names and
addressed of the persons to whom the shares represented by certificates are
issued shall be entered on the stock transfer books of the Corporation, together
with the number of shares and the date of issue, and in the case of
cancellation, the date of cancellation. Cerificates surrendered to the
Corporation for transfer shall be canceled, and no new certificate shall be
issued for such shares until the original certificate had been canceled; except
that in the case of a lost, destroyed or mutilated certificate, a new cerificate
may be issued therefor upon such terms and indemnity to the Corporation as the
Board may Prescribe.
Section 2. Transfer of Stock. Transfers of shares of stock of the
Corporation shall be made only on the stock transfer books of the Corporation by
the holder of record thereof or by its legal representative or attorney in fact,
who shall furnish proper evidence of authority to transfer to the Secretary, or
transfer clerk or a transfer agent, and upon surrender of the certificate or
certificates for such shares property endorsed and payment of all taxes thereon.
The person whose name shares of stock stand on the books of the Corporation
shall be deemed the owner thereof for all purposed as regards the Corporation.
Section 3. Regulations. The Board may make such rules and regulations as it
may deem expedient, not inconsistent with the Bylaws, concerning the issue,
transfer and registration of certificates for stock of the Corporation. The
Board may appoint, or authorize any officer or officers or any committee to
appoint, one or more transfer clerks or one or more transfer agents and one or
more registrars, and may require all certificates for stock to bear the
signature or signatures of any of them.
ARTICLE VIII - DIVIDENDS
The Board may from time to time declare, and the Corporation may pay,
dividends on its outstanding shares of stock in the manner and upon the terms
and conditions provided in the Arizona Revised Statutes.
ARTICLE IX - SEAL
A corporate seal shall not be requisite to the validity of any instrument
executed by or on behalf of the Corporation. Nevertheless, if in any instance a
corporate seal is used, the same shall be in the form of a circle and shall bear
the full name of the Corporation and the year and state of incorporation, or
words and figures of similar import.
ARTICLE X - AMENDMENTS
The Bylaws may be repealed, altered or amended, and new Bylaws may be
adopted, at any time only by majority vote of the Board.
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ADOPTED by the Board of Directors of the Corporation at Phoenix, Arizona,
as of the 3rd day of May, 1997.
/s/ Steve Lambrecht
----------------------------------
Steve Lambrecht
Director
/s/ Colin Jones
----------------------------------
Colin Jones
Director
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