Exhibit 10.1
PLAN AND AGREEMENT OF MERGER
BETWEEN
CAPITOL GROUP HOLDINGS CORPORATION (a Nevada corporation)
AND
APPLIED MICROBIC TECHNOLOGY, INC. (a Nevada corporation)
CAPITOL GROUP HOLDINGS CORPORATION, a Nevada corporation ("Capitol
Group Holdings") and APPLIED MICROBIC TECHNOLOGY, INC., a Nevada corporation
("AMTI"), hereby agree as follows:
1. Plan Adopted. A plan of merger merging Capitol Group Holdings with and into
AMTI (this "Plan of Merger"), pursuant to the provisions of Chapter 92A of the
Nevada Revised Statutes (the "NRS") and Section 368(a)(1)(A) of the Internal
Revenue Code of 1986, as amended, is adopted as follows:
(a) Capitol Group Holdings shall be merged with and into AMTI, to exist and be
governed by the laws of the State of Nevada.
(b) AMTI shall be the Surviving Corporation and its name shall be changed to
Capitol Group Holdings Corporation (the "Surviving Corporation").
(c) When this Plan of Merger shall become effective, the separate existence of
Capitol Group Holdings shall cease and the Surviving Corporation shall succeed,
without other transfer, to all the rights and properties of Capitol Group
Holdings and shall be subject to all the debts and liabilities of such
corporation in the same manner as if the Surviving Corporation had itself
incurred them. All rights of creditors and all liens upon the property of each
constituent entity shall be preserved unimpaired, limited in lien to the
property affected by such liens immediately prior to the merger (the "Merger").
(d) The Surviving Corporation will be responsible for the payment of all fees
and franchise taxes of the constituent entities payable to the State of Nevada,
if any.
(e) The Surviving Corporation will carry on business with the assets of Capitol
Group Holdings, as well as the assets of AMTI.
(f) The Surviving Corporation will be responsible for the payment of the fair
value of shares, if any, required under Chapter 92A of the NRS.
(g) The stockholders of Capitol Group Holdings will surrender all of
their shares in the manner hereinafter set forth.
(h) In exchange for the shares of Capitol Group Holdings surrendered by its
stockholders, the Surviving Corporation will issue and transfer to such
stockholders on the basis hereinafter set forth, shares of its common stock.
(i) The stockholders of AMTI will keep their shares of the Surviving
Corporation.
2. Effective Date. The effective date of the Merger (the "Effective
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Date") shall be the date of the filing of Articles of Merger for Capitol Group
Holdings and AMTI in the State Nevada.
3. Submission to Stockholders. This Plan of Merger shall be submitted
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for approval separately to the stockholders of Capitol Group Holdings and
AMTI in the manner provided by the laws of the State of Nevada.
4. Manner of Exchange. On the Effective Date, the stockholders of
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Capitol Group Holdings shall surrender their stock certificates to AMTI in
exchange for shares of the Surviving Corporation to which they are entitled.
5. Basis of Exchange. The holders of shares of the common stock, $0.001 par
value per share, of Capitol Group Holdings shall be entitled to receive, in
exchange for all the outstanding stock of Capitol Group Holdings, an amount of
stock so that after the issuance thereof, such holders of Capitol Group Holdings
will hold 88 percent of the issued and outstanding shares of the common stock of
the Surviving Corporation, par value $0.001 per share.
6. Shares of the Surviving Corporation Held by the Current Stockholders of AMTI.
The presently outstanding shares of the common stock of AMTI shall be retained
by its current stockholders following the Merger, so that following the Merger,
such current stockholders of AMTI will hold an amount of stock equal 12 percent
of the issued and outstanding shares of the common stock of the Surviving
Corporation, par value $0.001 per share.
7. Registration Rights. It is contemplated by the parties that certain of the
shares to be owned by AMTI in the Surviving Corporation will be spun-off to its
stockholders pursuant to a registration statement on Form SB-2 (the
"Registration Statement") to be filed by the Surviving Corporation under the
Securities Act of 1933, as amended, after the Effective Date, with such shares
being freely tradable. In addition, the Registration Statement will cover any
other shares to be owned by AMTI in the Surviving Corporation as may be
requested by AMTI. Capitol Group Holdings hereby undertakes that it will file
the Registration Statement as promptly as possible following the Effective Date.
AMTI agrees to reasonably cooperate in furnishing all required information
reasonably requested by Capitol Group Holdings in connection with the
preparation and filing of the Registration Statement.
8. Directors and Officers.
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(a) The present Board of Directors of Capitol Group Holdings shall serve as the
Board of Directors of the Surviving Corporation until the next annual meeting or
until such time as their successors have been elected and qualified.
(b) If a vacancy shall exist on the Board of Directors of the Surviving
Corporation on the Effective Date, such vacancy may be filled by the Board of
Directors as provided in the Bylaws of the Surviving Corporation.
(c) All persons who, on the Effective Date, are executive or administrative
officers of Capitol Group Holdings shall be officers of the Surviving
Corporation until the Board of Directors of the Surviving Corporation shall
otherwise determine. The Board of Directors of the Surviving Corporation may
elect or appoint such additional officers as it may deem necessary or
appropriate.
9. Articles of Incorporation. The Articles of Incorporation of AMTI, existing on
the Effective Date and reflecting the change of the corporate name to Capitol
Group Holdings Corporation and other provisions, a copy of which are attached
hereto as Exhibit A and incorporated herein for all purposes, shall continue in
full force as the Articles of Incorporation of the Surviving Corporation until
altered, amended, or repealed as provided therein or as provided by law.
10. Bylaws. The Bylaws of AMTI existing on the Effective Date and reflecting the
change of the corporate name to Capitol Group Holdings Corporation, a copy of
which are attached hereto as Exhibit B and incorporated herein for all purposes,
shall continue in full force as the Bylaws of the Surviving Corporation until
altered, amended, or repealed as provided therein or as provided by law.
11. Copies of the Plan of Merger. A copy of this Plan of Merger is on file at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, the principal
offices of Capitol Group Holdings, and ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the principal offices of AMTI. A copy of this Plan of Merger
will be furnished to any stockholder of Capitol Group Holdings or AMTI, on
written request and without cost.
12. Representations and Warranties of Capitol Group Holdings. Capitol
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Group Holdings represents and warrants to AMTI as follows:
(a) Organization. Capitol Group Holdings is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada.
Capitol Group Holdings is not currently qualified to do business in any other
state.
(b) Capitalization. The authorized capital stock of Capitol Group Holdings
consists of 500,000,000 shares of common stock, with a par value of $0.001, of
which 44,000,000 shares are issued and outstanding, and 50,000,000 shares of
preferred stock, par value $0.001, of which none are outstanding. Each
outstanding share of Capitol Group Holdings common stock is duly authorized,
validly issued, fully paid and non-assessable, has not been issued and is not
owned or held in violation of any preemptive right of Capitol Group Holdings.
Such capital stock listed above is, in each case, free and clear of all liens,
security interests, pledges, charges, encumbrances, stockholders' agreements,
and voting trusts. There is no commitment, plan or arrangement to issue and no
outstanding option, warrant, or other right calling for the issuance of, any
share of capital stock of Capitol Group Holdings or any security or other
instrument convertible into or exchangeable for capital stock of Capitol Group
Holdings.
(c) Financial Condition. Capitol Group Holdings has furnished to AMTI an
unaudited balance sheet of Capitol Group Holdings as of June 30, 2002, and the
related statement of income and retained earnings for the period covered thereby
(the "Financial Statement"). The Financial Statement (i) is in accordance with
the books and records of Capitol Group Holdings; (ii) fairly presents the
financial condition of Capitol Group Holdings at such date and the results of
its operations for the period therein specified; (iii) was prepared in
accordance with generally accepted accounting principles applied upon a basis
consistent with prior accounting periods; and (iv) with respect to all contracts
and commitments of Capitol Group Holdings, reflects adequate reserves for all
reasonably anticipated losses and costs in excess of anticipated income.
Specifically, but not by way of limitation, the Financial Statement discloses
all of the debts, liabilities, and obligations of any nature (whether absolute,
accrued, contingent, or otherwise and whether due or to become due) of Capitol
Group Holdings on the dates therein specified (except such debts, liabilities,
and obligations as are not required to be reflected therein in accordance with
generally accepted accounting principles) and includes appropriate reserves for
all taxes and other liabilities accrued or due at such dates but not yet
payable.
(d) Present Status. Since the dates reflected on the Financial Statement,
Capitol Group Holdings has not: (i) incurred any material obligations or
material liabilities, absolute, accrued, contingent, or otherwise, except
current trade payables; (ii) discharged or satisfied any liens or encumbrances,
or paid any obligations or liabilities, except current Financial Statement
liabilities and current liabilities incurred since the dates reflected on the
Financial Statement, in each case, in the ordinary course of business; (iii)
declared or made any stockholder payment or distribution or purchased or
redeemed any of its securities or agreed to do so; (iv) mortgaged, pledged, or
subjected to lien, encumbrance, or charge any of its assets except as shall be
removed prior to or at the Effective Date; (v) canceled any debt or claim; (vi)
sold or transferred any assets of a material value except sales from inventory
in the ordinary course of business; (vii) suffered any damage, destruction, or
loss (whether or not covered by insurance) materially affecting its properties,
business, or prospects; (viii) waived any rights of a material value; or (ix)
entered into any transaction other than in the ordinary course of business.
(e) Tax Liabilities. The amounts set up as provisions for taxes on the Financial
Statement are sufficient for all accrued and unpaid federal, state, local, and
foreign taxes of Capitol Group Holdings, whether or not due and payable and
whether or not disputed, under tax laws as in effect on the date of the
Financial Statement or now in effect, for the period ended on that date and for
all fiscal years prior thereto. Capitol Group Holdings (i) has filed all
federal, state, local, and foreign tax returns required to be filed by it; (ii)
has delivered to AMTI true and correct copies for the last two years thereof
initialed by the chief executive officer of Capitol Group Holdings; (iii) has
paid (or has established on the Financial Statement a reserve for) all taxes,
assessments, and other governmental charges payable or remittable by it or
levied upon it or its properties, assets, income, or franchises which are due
and payable; and (iv) has delivered to AMTI a true and correct copy so initialed
of any report as to adjustments received by Capitol Group Holdings from any
taxing authority during the past five years and a statement, so initialed, as to
any litigation, governmental or other proceeding (formal or informal), or
investigation pending, threatened, or in prospect with respect to any of those
reports or the subject matter of those reports.
(f) Litigation and Claims. There is no litigation, arbitration, claim,
governmental or other proceeding (formal or informal), or investigation pending,
threatened, or in prospect (or any basis therefore known to Capitol Group
Holdings or the stockholders) with respect to Capitol Group Holdings, the
stockholders, or any of their business, properties, or assets. Capitol Group
Holdings is not affected by any present or threatened strike or other labor
disturbance nor, to the knowledge of Capitol Group Holdings or the stockholders,
is any union attempting to represent any employee of Capitol Group Holdings as
collective bargaining agent. Capitol Group Holdings is not in violation of, or
in default with respect to, any law, rule, regulation, order, judgment, or
decree; nor is Capitol Group Holdings or the stockholders required to take any
action in order to avoid such a violation or default.
(g) Properties. Capitol Group Holdings has good and marketable title in fee
simple absolute to all real properties and good title to all other properties
and assets used in its business or owned by it (except real and other properties
and assets as are held pursuant to leases or licenses, free and clear of all
liens, mortgages, security interests, pledges, charges, and encumbrances, other
than as shown on the financial statements referred to herein, including, but not
limited to a tax lien for unpaid real estate taxes. Moreover:
(i) No real property owned, leased, licensed, or used by Capitol Group Holdings
lies in an area which is, or to the knowledge of Capitol Group Holdings or the
stockholders will be, subject to zoning, use, or building code restrictions
which would prohibit, and no state of facts relating to the actions or inaction
of another person or entity or their ownership, leasing, licensing, or use of
that real property in the business in which Capitol Group Holdings is now
engaged or the business in which it contemplates engaging.
(ii) The real and other properties and assets owned, leased, or licensed by
Capitol Group Holdings constitute all such properties and assets which are
necessary to the business of Capitol Group Holdings as presently conducted or as
it contemplates conducting.
(h) Contracts and Other Instruments. All contracts have been disclosed to AMTI
as it relates to Capitol Group Holdings or to the stockholders. Capitol Group
Holdings has furnished to AMTI the articles of incorporation and bylaws of
Capitol Group Holdings and all amendments thereto, as presently in effect,
certified by the Secretary of the corporation. Neither Capitol Group Holdings,
the stockholders, nor to the knowledge of Capitol Group Holdings or the
stockholders any other party to any of those contracts, agreements, instruments,
leases, or licenses, is now or expects in the future to be in violation or
breach of, or in default with respect to complying with, any material provision
thereof, and each contract, agreement, instrument, lease, or license is in full
force and is the legal, valid, and binding obligation of the parties thereto and
is enforceable as to them in accordance with its terms, subject to any laws
relating to bankruptcy or any other similar laws.
(i) Employees. Capitol Group Holdings has no employees on the date of this
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Plan of Merger.
(j) Patents, Trademarks, etc. Capitol Group Holdings does not
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have any patents, pending patent applications, or trademarks.
(k) Authority to Merge. Capitol Group Holdings has all requisite power and
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authority to execute, deliver, and perform this Plan of Merger. All necessary
corporate proceedings of Capitol Group Holdings have been duly taken to
authorize the execution, delivery, and performance of this Plan of Merger by
Capitol Group Holdings. This Plan of Merger has been duly authorized, executed
and delivered by Capitol Group Holdings; is the legal, valid, and binding
obligation of Capitol Group Holdings; and is enforceable as to it in accordance
with its terms subject to any laws relating to bankruptcy or any other similar
laws.
No consent, authorization, approval, order, license, certificate, or
permit of or from, or declaration of filing with, any federal, state, local, or
other governmental authority or any court or other tribunal is required by
Capitol Group Holdings for the execution, delivery, or performance of this Plan
of Merger by Capitol Group Holdings. No consent of any party to any contract,
agreement, instrument, lease, license, arrangement, or understanding to which
Capitol Group Holdings is a party, or to which any of its properties or assets
are subject, is required for the execution, delivery or performance of this Plan
of Merger; and the execution, delivery, and performance of this Plan of Merger
will not violate, result in a breach of, conflict with, or (with or without the
giving of notice or the passage of time or both) entitle any party to terminate
or call a default under any contract, agreement, instrument, lease, license,
arrangement, or understanding, or violate or result in a breach of any term of
the articles of incorporation (or other charter document) or bylaws of Capitol
Group Holdings or violate, result in a breach of, or conflict with any law,
rule, regulation, order, judgment, or decree binding on Capitol Group Holdings
or to which any of their operations, business, properties, or assets are
subject.
(l) Completeness of Disclosure. No representation or warranty by Capitol Group
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Holdings in this Plan of Merger contains, or on the Effective Date will contain,
any untrue statement of material fact or omits, or will omit, to state a
material fact necessary to make the statements made not misleading.
13. Conditions to Obligations of AMTI. The obligations of AMTI under
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this Plan of Merger are subject, at the option of AMTI, to the following
conditions:
(a) Accuracy of Representations and Compliance with Conditions. (i) All
representations and warranties of Capitol Group Holdings contained in this Plan
of Merger shall be accurate when made and, in addition, shall be accurate as of
the Effective Date as though the representations and warranties were then made
in exactly the same language by Capitol Group Holdings and regardless of
knowledge or lack thereof on the part of Capitol Group Holdings or changes
beyond its control; (ii) as of the Effective Date, Capitol Group Holdings shall
have performed and complied with all covenants and agreements and satisfied all
conditions required to be performed and complied with by it at or before that
time by this Plan of Merger; and (iii) AMTI shall have received certificates
signed by the Chief Executive Officer of Capitol Group Holdings dated the
Effective Date to that effect.
(b) Review of Proceedings. All actions, proceedings, instruments, and documents
required to carry out this Plan of Merger or incidental thereto and all other
related legal matters shall be subject to the reasonable approval of the counsel
for AMTI, and Capitol Group Holdings shall have furnished such counsel those
documents as such counsel may have reasonably requested for the purpose of
enabling them to pass upon such matters.
(c) Legal Action. There shall not have been instituted or threatened any legal
proceeding relating to, or seeking to prohibit or otherwise challenge the
consummation of, the transactions contemplated by this Plan of Merger, or to
obtain substantial damages with respect thereto.
14. Contractual Consents Needed. The parties to this Plan of Merger shall have
obtained, at or prior to the Effective Date, all consents required for the
consummation of the transactions contemplated by this Plan of Merger from any
party to any contract, agreement, instrument, lease, license, arrangement, or
understanding to which any of them is a party, or to which any of their
respective businesses, properties, or assets are subject.
15. Notices. All notices, requests, demands, and other communications hereunder
shall be in writing and delivered personally or sent by registered or certified
United States mail, return receipt requested with postage prepaid, or by
telecopy or e-mail, if to Capitol Group Holdings, addressed to ▇▇. ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
telecopier (▇▇▇) ▇▇▇-▇▇▇▇, and e-mail ▇▇▇▇▇@▇▇▇.▇▇▇; and if to AMTI, addressed
to Mr. ▇▇▇▇▇▇ ▇▇▇▇▇ at ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
telecopier (▇▇▇) ▇▇▇-▇▇▇▇, and e-mail ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇. Any party hereto
may change its address upon 10 days' written notice to any other party hereto.
16. Legal Construction. In case any one or more of the provisions contained in
this Plan of Merger shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provisions hereof, and this Plan of Merger shall be
construed as if such invalid, illegal, or unenforceable provision had never been
contained herein.
17. Benefit. All the terms and provisions of this Plan of Merger shall
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be binding upon and inure to the benefit of and be enforceable by the parties
hereto, and their successors and permitted assigns.
18. Law Governing. This Plan of Merger shall be construed and governed
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by the laws of the State of Nevada, and all obligations hereunder shall be
deemed performable in San Diego County, California.
19. Perfection of Title. The parties hereto shall do all other acts and things
that may be reasonably necessary or proper, fully or more fully, to evidence,
complete or perfect this Plan of Merger, and to carry out the intent of this
Plan of Merger.
20. Cumulative Rights. The rights and remedies of any party under this Plan of
Merger and the instruments executed or to be executed in connection herewith, or
any of them, shall be cumulative and the exercise or partial exercise of any
such right or remedy shall not preclude the exercise of any other right or
remedy.
21. Waiver. No course of dealing on the part of any party hereto or its agents,
nor any failure or delay by any such party with respect to exercising any right,
power or privilege of such party under this Plan of Merger or any instrument
referred to herein shall operate as a waiver thereof, and any single or partial
exercise of any such right, power or privilege shall not preclude any later
exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
22. Construction. Whenever used herein, the singular number shall
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include the plural, the plural number shall include the singular, and the
masculine gender shall include the feminine.
23. Multiple Counterparts. This Plan of Merger may be executed in one or
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more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Plan of Merger on
June 12, 2002.
CAPITOL GROUP HOLDINGS CORPORATION
By/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
APPLIED MICROBIC TECHNOLOGY, INC.
By/s/▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇, President
Attachments:
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Exhibit A - Amended and Restated Articles of Incorporation of Capitol Group
Holdings Corporation
Exhibit B - Amended Bylaws of Capitol Group Holdings Corporation
2
EXHIBIT A
AMENDED AND RESTATED ARTICLES OF INCORPORATION OF
CAPITOL GROUP HOLDINGS CORPORATION
A NEVADA CORPORATION
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
APPLIED MICROBIC TECHNOLOGY, INC.
ARTICLE ONE
Applied Microbic Technology, Inc. (the "Company"), pursuant to the
provisions of Section 78.403 of the Nevada Revised Statutes (the "NRS"), adopts
these restated Articles of Incorporation, which accurately copy the Articles of
Incorporation and all amendments in effect to date. The Articles of
Incorporation, as restated and amended by these restated Articles of
Incorporation, are set forth below.
ARTICLE TWO
Each statement made by these restated Articles of Incorporation has
been effected in conformity with the provisions of the NRS. These restated
Articles of Incorporation and each amendment made by these restated Articles of
Incorporation were adopted by the stockholders of the Company on June 12, 2002.
ARTICLE THREE
The number of shares of the Company outstanding at the time of the
adoption was 6,000,000; and the number of shares entitled to vote on the
amendments was 6,000,000.
ARTICLE FOUR
The number of shares that voted for the amendments was 6,000,000; and
the number of shares voted against the amendments was zero.
ARTICLE FIVE
The Articles of Incorporation and all amendments and supplements to
them are superseded by the following restated Articles of Incorporation, which
accurately copy the entire text as well as incorporate the amendments passed by
the stockholders on June 12, 2002:
"ARTICLE I"
Name
The name of the Company is Capitol Group Holdings Corporation.
"ARTICLE II"
Business
The purpose and nature of the business, objectives, or purposes to be
transacted, promoted, or carried on by the Company shall be as follows:
1. To engage in any lawful activity.
2. To do all and everything necessary, suitable, and proper to
accomplish the foregoing, and to engage in any and every
activity and business enterprise which the Company's board of
directors (the "Board of Directors") may, from time to time,
deem reasonably necessary, providing the same shall not be
inconsistent with the NRS.
"ARTICLE III"
Capital Stock
1. Authorized Stock. The total number of shares of stock which
the Company shall have authority to issue is 350,000,000,
consisting of 300,000,000 shares of common stock, par value
$0.001 per share (the "Common Stock"), and 50,000,000 shares
of preferred stock, par value $0.001 per share (the "Preferred
Stock").
2. Preferred Stock. The Preferred Stock may be issued from time to
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time in one or more series. The Board of Directors is hereby authorized to
create and provide for the issuance of shares of the Preferred Stock in series
and, by filing a certificate pursuant to the applicable section of the NRS (the
"Preferred Stock Designation"), to establish from time to time the number of
shares to be included in each such series, and to fix the designations, powers,
preferences and rights of the shares of each such series and the qualifications,
limitations or restrictions thereof. The authority of the Board of Directors
with respect to each series shall include, but not be limited to, determination
of the following:
(a) The designation of the series, which may be by distinguishing number,
letter or title.
(b) The number of shares of the series, which number the Board of Directors
may thereafter (except where otherwise provided in the Preferred Stock
Designation) increase or decrease (but not below the number of shares thereof
then outstanding).
(c) Whether dividends, if any, shall be cumulative or noncumulative and the
dividend rate of the series.
(d) The dates at which dividends, if any, shall be payable.
(e) The redemption rights and price or prices, if any, for shares of the
series.
(f) The terms and amount of any sinking fund provided for the purchase or
redemption of shares of the series.
(g) The amounts payable on, and the preferences, if any, of shares of the
series in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Company.
(h) Whether the shares of the series shall be convertible into shares of
any other class or series, or any other security, of the Company or any other
corporation, and, if so, the specification of such other class or series of such
other security, the conversion price or prices or rate or rates, any adjustments
thereof, the date or dates at which such shares shall be convertible and all
other terms and conditions upon which such conversion may be made.
(i) Restrictions on the issuance of shares of the same series or of any
other class or series.
(j) The voting rights, if any, of the holders of shares of the series.
(k) Such other powers, preferences and relative, participating, optional
and other special rights, and the qualifications, limitations and restrictions
thereof as the Board of Directors shall determine.
3. Common Stock. The Common Stock shall be subject to the express terms of
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the Preferred Stock and any series thereof. Each share of the Common Stock shall
be equal to each other share of the Common Stock. The holders of shares of the
Common Stock shall be entitled to one vote for each such share upon all
questions presented to the stockholders.
4. Voting Rights. Except as may be provided in these Articles of
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Incorporation or in a Preferred Stock Designation, or as may be required by
applicable law, the Common Stock shall have the exclusive right to vote for the
election of directors and for all other purposes, and holders of shares of the
Preferred Stock shall not be entitled to receive notice of any meeting of
stockholders at which they are not entitled to vote. At each election for
directors, every stockholder entitled to vote at such election shall have the
right to vote, in person or by proxy, the number of shares owned by him for as
many persons as there are directors to be elected and for whose election he has
a right to vote. It is expressly prohibited for any stockholder to cumulate his
votes in any election of directors.
5. Denial of Preemptive Rights. No stockholder of the Company shall,
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by reason of his holding shares of any class, have any preemptive or
preferential right to purchase or subscribe to any shares of any class of the
Company, now or hereafter to be authorized, or any notes, debentures, bonds, or
other securities convertible into or carrying options or warrants to purchase
shares of any class, now or hereafter to be authorized, whether or not the
issuance of any such shares, or such notes, debentures, bonds or other
securities would adversely affect dividend or voting rights of such stockholder,
other than such rights, if any, as the Board of Directors in its discretion may
fix; and the Board of Directors may issue shares of any class of the Company, or
any notes, debentures, bonds, or other securities convertible into or carrying
options or warrants to purchase shares of any class, without offering any such
shares of any class, either in whole or in part, to the existing stockholders of
any class.
"ARTICLE IV"
Election of Directors
1. Number. The business and affairs of the Company shall be
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conducted and managed by, or under the direction of, the Board of
Directors. The total number of directors constituting the entire Board of
Directors shall be fixed and may be altered from time to time by or pursuant to
a resolution passed by the Board of Directors.
2. Vacancies. Except as otherwise provided for herein, newly created
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directorships resulting from any increase in the authorized number of
directors, and any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause, may be filled only by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum of the Board of Directors. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the newly created directorship or for the directorship in which
the vacancy occurred, and until such director's successor shall have been duly
elected and qualified, subject to his earlier death, disqualification,
resignation or removal. Subject to the provisions of these Articles of
Incorporation, no decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
3. Removal of Directors. Except as otherwise provided in any Preferred
--------------------
Stock Designation, any director may be removed from office only by the
affirmative vote of the holders of a majority or more of the combined voting
power of the then outstanding shares of capital stock of the Company entitled to
vote at a meeting of stockholders called for that purpose, voting together as a
single class.
"ARTICLE V"
Meetings of Stockholders
Meetings of stockholders of the Company (the "Stockholder Meetings") may be
held within or without the State of Nevada, as the Bylaws of the Company (the
"Bylaws") may provide. Special Stockholder Meetings may be called only by (a)
the President, (b) the holders of at least 10 percent of all of the shares
entitled to vote at the proposed special meeting, or (c) the Board of Directors
pursuant to a duly adopted resolution. Special Stockholder Meetings may not be
called by any other person or persons or in any other manner. Elections of
directors need not be by written ballot unless the Bylaws shall so provide.
"ARTICLE VI"
Stockholder Consent
No action that is required or permitted to be taken by the stockholders of
the Company at any annual or special meeting of stockholders may be effected by
written consent of stockholders in lieu of a meeting of stockholders, unless the
action to be effected by written consent of stockholders and the taking of such
action by such written consent have expressly been approved in advance by the
Board of Directors.
"ARTICLE VII"
Limitation of Liability
Except as otherwise provided in the NRS, a director or officer of the
Company shall not be personally liable to the Company or its stockholders for
damages as a result of any act or failure to act in his capacity as a director
or officer; provided, however, that this Article shall not eliminate or limit
the liability of a director or officer (a) if it is proven that his act or
failure to act constituted a breach of his fiduciary duties and such breach
involved intentional misconduct, fraud or a knowing violation of law, or (b)
under Section 78.300 of the NRS.
If the NRS is amended after the date of filing of these Articles of
Incorporation to authorize corporate action further limiting or eliminating the
personal liability of a director, then the liability of the directors of the
Company shall be limited or eliminated to the fullest extent permitted by the
NRS, as so amended, or a similar successor provision. Any repeal or modification
of this Article by the stockholders of the Company or otherwise shall not
adversely affect any right or protection of a director of the Company existing
at the time of such repeal or modification.
"ARTICLE VIII"
Indemnification
1. Discretionary Indemnification. (a) The Company 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 Company, by reason of the fact that he is or was a director, officer,
employee or agent of the Company, or is or was serving at the request of the
Company 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: (i) is not liable pursuant to Section 78.138 of the NRS; or
(ii) acted in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had 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 is liable
pursuant to Section 78.138 of the NRS or 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 Company, or that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was unlawful.
(b) The Company 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 Company 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 Company, or is or was serving at the request of the Company 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: (i) is not liable
pursuant to Section 78.138 of the NRS; or (ii) acted in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Company. 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
Company or for amounts paid in settlement to the Company, 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 courts deem proper.
2. Determination of Discretionary Indemnification. Any discretionary
indemnification pursuant to Section 1 of this Article VIII, unless ordered by a
court or advanced pursuant to this Section 2, may be made by the Company 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 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.
The expenses of officers and directors incurred in defending a civil or
criminal action, suit or proceeding must be paid by the Company as they are
incurred 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 Company.
3. Mandatory Indemnification. To the extent that a director, officer,
employee or agent of the Company has been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in Section 1 of this
Article VIII, or in defense of any claim, issue or matter therein, the Company
shall indemnify him against expenses, including attorneys' fees actually and
reasonably incurred by him in connection with the defense.
4. Non-Exclusivity. The indemnification and advancement of expenses
---------------
authorized in or ordered by a court pursuant to this Article VIII:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any 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 1 of this Article VIII, or for the advancement of expenses made pursuant
to Section 2 of this Article VIII 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 any such person.
5. Insurance. The Company may purchase and maintain insurance or make
---------
other financial arrangements on behalf of any person who is or was a
director, officer, employee or agent of the Company, or is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise for any
liability asserted against him and liability and expenses incurred by him in his
capacity as a director, officer, employee or agent, or arising out of his status
as such, whether or not the Company has the authority to indemnify him against
such liability expenses.
"ARTICLE IX"
Amendment of Corporate Documents
1. Articles of Incorporation. Whenever any vote of the holders of
---------------------------
voting shares of the capital stock of the Company is required by law to
amend, alter, repeal or rescind any provision of these Articles of
Incorporation, such alteration, amendment, repeal or rescission of any provision
of these Articles of Incorporation must be approved by the Board of Directors
and by the affirmative vote of the holders of at least a majority of the
combined voting power of the then outstanding voting shares of capital stock of
the Company, voting together as a single class.
Subject to the provisions hereof, the Company reserves the right at any
time, and from time to time, to amend, alter, repeal or rescind any provision
contained in these Articles of Incorporation in the manner now or hereafter
prescribed by law, and other provisions authorized by the laws of the State of
Nevada at the time in force may be added or inserted, in the manner now or
hereafter prescribed by law; and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to these Articles of Incorporation in their present
form or as hereafter amended are granted subject to the rights reserved in this
Article.
2. Bylaws. In addition to any affirmative vote required by law, any Change
of the Bylaws may be adopted either (a) by the affirmative vote of the Board of
Directors, or (b) by the stockholders by the affirmative vote of the holders of
at least a majority of the combined voting power of the then outstanding voting
shares of capital stock of the Company, voting together as a single class.
"ARTICLE X"
Application of NRS 78.411 to 78.444, Inclusive
These Articles of Incorporation expressly provide that the Company shall
not be governed by NRS 78.411 to 78.444, inclusive.
"ARTICLE XI"
Existence
The Company is to have perpetual existence.
IN WITNESS HEREOF, the undersigned has hereunto set his hand this 12th
day of June, 2002.
APPLIED MICROBIC TECHNOLOGY, INC.
By/▇▇▇▇▇▇ ▇▇▇▇▇
---------------------
▇▇▇▇▇▇ ▇▇▇▇▇, President
EXHIBIT B
AMENDED BYLAWS OF
CAPITOL GROUP HOLDINGS CORPORATION,
A NEVADA CORPORATION
AMENDED BYLAWS OF
CAPITOL GROUP HOLDINGS CORPORATION
ARTICLE I
Offices
1.1. Registered Office. The registered office of Capitol Group Holdings
-------------------
Corporation (the "Company") required by Section 78.035 of the Nevada Amended
Statutes or any successor statute (the "NRS") to be maintained in the State of
Nevada shall be the registered office named in the Articles of Incorporation of
the Company, as they may be amended or restated from time to time in accordance
with the NRS (the "Articles of Incorporation").
1.2. Other Offices. The Company may also have offices at such other places
--------------
both within and without the State of Nevada as the Board of Directors of
the Company (the "Board of Directors") may determine from time to time or as the
business of the Company may require.
ARTICLE II
Meetings of Stockholders
2.1. Place of Meetings. Meetings of the Company's stockholders shall be
-----------------
held at such place within or without the State of Nevada as may be
designated by the Board of Directors or the officer calling the meeting, or, in
the absence of such designation, at the principal office of the Company.
2.2. Annual Meeting. An annual meeting of the stockholders, for the election of
directors to succeed those whose terms expire or to fill vacancies and for the
transaction of such other business as may properly come before the meeting,
shall be held on such date and at such time as the Board of Directors shall fix
and set forth in the notice of the meeting, which date shall be within 13 months
subsequent to the last annual meeting of stockholders. At the annual meeting of
the stockholders, only such business shall be conducted as shall have been
properly brought before the annual meeting as set forth in Paragraph 2.8 hereof.
Failure to hold the annual meeting at the designated time shall not work a
dissolution of the Company.
2.3. Special Meetings. Subject to the rights of the holders of any series of the
Company's preferred stock, par value $0.001 per share (the "Preferred Stock"),
as designated in any resolutions adopted by the Board of Directors and filed
with the State of Nevada (a "Preferred Stock Designation"), special meetings of
the stockholders may be called at any time by those persons set forth in the
Articles of Incorporation. Upon written request of any person or persons who
have duly called a special meeting, it shall be the duty of the Secretary to fix
the date of the meeting to be held not less than 10 nor more than 60 days after
the receipt of the request and to give due notice thereof, as required by the
NRS. If the Secretary shall neglect or refuse to fix the date of the meeting and
give notice thereof, the person or persons calling the meeting may do so.
2.4. Notice of Meeting. Written or printed notice of all meetings, stating the
place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered not less than 10 nor more than 60 days
before the date of the meeting, either personally or by mail, by or at the
direction of the Chairman of the Board or Secretary, to each stockholder
entitled to vote at such meeting. If mailed, such notice shall be deemed to be
delivered to a stockholder when deposited in the United States mail addressed to
such stockholder at such stockholder's address as it appears on the stock
transfer records of the Company, with postage thereon prepaid.
2.5. Registered Holders of Shares; Closing of Share Transfer Records;
----------------------------------------------------------------
and Record Date.
----------------
(a) Registered Holders as Owners. Unless otherwise provided under the NRS, the
Company may regard the person in whose name any shares are registered in the
stock transfer records of the Company at any particular time (including, without
limitation, as of a record date fixed pursuant to subparagraph (b) of this
Paragraph 2.5) as the owner of such shares at that time for purposes of voting,
receiving distributions thereon or notices in respect thereof, transferring such
shares, exercising rights of dissent with respect to such shares, entering into
agreements with respect to such shares, or giving proxies with respect to such
shares; and neither the Company nor any of its officers, directors, employees or
agents shall be liable for regarding that person as the owner of such shares at
that time for those purposes, regardless of whether that person possesses a
certificate for such shares.
(b) Record Date. For the purpose of determining stockholders entitled to notice
of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive a distribution by the Company (other than a distribution
involving a purchase or redemption by the Company of any of its own shares) or a
share dividend, or in order to make a determination of stockholders for any
other proper purpose, the Board of Directors may fix in advance a date as the
record date for any such determination of stockholders, such date in any case to
be not more than 60 days and, in the case of a meeting of stockholders, not less
than 10 days, prior to the date on which the particular action requiring such
determination of stockholders is to be taken. The Board of Directors shall not
close the books of the Company against transfers of shares during the whole or
any part of such period.
If the Board of Directors does not fix a record date for any meeting of
the stockholders, the record date for determining stockholders entitled to
notice of or to vote at such meeting shall be at the close of business on the
day next preceding the day on which notice is given, or, if in accordance with
Paragraph 7.3 of these Bylaws notice is waived, at the close of business on the
day next preceding the day on which the meeting is held.
2.6. Quorum of Stockholders; Adjournment. Unless otherwise provided in the
Articles of Incorporation, a majority of the outstanding shares of capital stock
of the Company entitled to vote, present in person or represented by proxy,
shall constitute a quorum at any meeting of the stockholders, and the
stockholders present at any duly convened meeting may continue to do business
until adjournment notwithstanding any withdrawal from the meeting of holders of
shares counted in determining the existence of a quorum. Unless otherwise
provided in the Articles of Incorporation or these Bylaws, any meeting of the
stockholders may be adjourned from time to time by the chairman of the meeting
or the holders of a majority of the issued and outstanding stock, present in
person or represented by proxy, whether or not a quorum is present, without
notice other than by announcement at the meeting at which such adjournment is
taken, and at any such adjourned meeting at which a quorum shall be present any
action may be taken that could have been taken at the meeting originally called;
provided that if the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the adjourned meeting.
2.7. Voting by Stockholders.
----------------------
(a) Voting on Matters Other than the Election of Directors. With respect to any
matters as to which no other voting requirement is specified by the NRS, the
Articles of Incorporation or these Bylaws, and, subject to the rights of the
holders of any series of Preferred Stock to elect directors under specific
circumstances, the affirmative vote required for stockholder action shall be
that of a majority of the shares present in person or represented by proxy at
the meeting (as counted for purposes of determining the existence of a quorum at
the meeting). In the case of a matter submitted for a vote of the stockholders
as to which a stockholder approval requirement is applicable under the
stockholder approval policy of any stock exchange or quotation system on which
the capital stock of the Company is traded or quoted, the requirements under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any
provision of the Internal Revenue Code, in each case for which no higher voting
requirement is specified by the NRS, the Articles of Incorporation or these
Bylaws, the vote required for approval shall be the requisite vote specified in
such stockholder approval policy, the Exchange Act or Internal Revenue Code
provision, as the case may be (or the highest such requirement if more than one
is applicable).
(b) Voting in the Election of Directors. Unless otherwise provided in the
Articles of Incorporation or these Bylaws in accordance with the NRS, directors
shall be elected by a plurality of the votes cast by the holders of outstanding
shares of capital stock of the Company entitled to vote in the election of
directors at a meeting of stockholders at which a quorum is present.
(c) Consents in Lieu of Meeting. Pursuant to the Articles of Incorporation, no
action that is required or permitted to be taken by the stockholders of the
Company at any annual or special meeting of stockholders may be effected by the
written consent of stockholders in lieu of a meeting, unless the action to be
effected by the written consent of stockholders and the taking of such action by
written consent have been expressly approved in advance by the Board of
Directors.
(d) Other. The Board of Directors, in its discretion, or the officer of the
Company presiding at a meeting of stockholders of the Company, in his
discretion, may require that any votes cast at such meeting shall be cast by
written ballot.
2.8. Business to be Conducted at Annual or Special Stockholder Meetings. At any
annual or special meeting of stockholders, only such business shall be
conducted, and only such proposals shall be acted upon, as shall have been
disclosed in the notice delivered to the stockholders with respect to such
meeting.
2.9. Proxies. Each stockholder entitled to vote at a meeting of stockholders may
authorize another person or persons to act for him by proxy. Proxies for use at
any meeting of stockholders shall be filed with the Secretary, or such other
officer as the Board of Directors may from time to time determine by resolution,
before or at the time of the meeting. All proxies shall be received and taken
charge of and all ballots shall be received and canvassed by the secretary of
the meeting who shall decide all questions relating to the qualification of
voters, the validity of the proxies, and the acceptance or rejection of votes,
unless an inspector or inspectors shall have been appointed by the chairman of
the meeting, in which event such inspector or inspectors shall decide all such
questions.
2.10. Approval or Ratification of Acts or Contracts by Stockholders. The Board
of Directors in its discretion may submit any act or contract for approval or
ratification at any annual meeting of the stockholders, or at any special
meeting of the stockholders called for the purpose of considering any such act
or contract, and any act or contract that shall be approved or be ratified by
the vote of the stockholders holding a majority of the issued and outstanding
shares of stock of the Company entitled to vote and present in person or by
proxy at such meeting (provided that a quorum is present), shall be as valid and
as binding upon the Company and upon all the stockholders as if it has been
approved or ratified by every stockholder of the Company.
2.11. Inspectors of Election. The Company shall, in advance of any meeting of
stockholders, appoint one or more inspectors of election, who may be employees
of the Company, to act at the meeting or any adjournment thereof and to make a
written report thereof. The Company may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no inspector
so appointed or designated is able to act at a meeting of stockholders, the
chairman or the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath to execute faithfully the
duties of inspector with strict impartiality and according to the best of his
ability.
The inspector or inspectors so appointed or designated shall: (a)
ascertain the number of shares of capital stock of the Company outstanding and
the voting power of each such share; (b) determine the shares of capital stock
of the Company represented at the meeting and the validity of proxies and
ballots; (c) count all votes and ballots; (d) determine and retain for a
reasonable period a record of the disposition of any challenges made to any
determination by the inspectors; and (e) certify their determination of the
number of shares of the capital stock of the Company represented at the meeting
and such inspectors' count of all votes and ballots. Such certification and
report shall specify such other information as may be required by law. In
determining the validity and counting of proxies and ballots cast at any meeting
of stockholders of the Company, the inspectors may consider such information as
is permitted by applicable law. No person who is a candidate for an office at an
election may serve as an inspector at such election.
ARTICLE III
Directors
3.1. Powers, Number, Classification and Tenure.
-----------------------------------------
(a) The powers of the Company shall be exercised by or under the authority of,
and the business and affairs of the Company shall be managed under the direction
of, the Board of Directors. Each director shall hold office for the full term
for which such director is elected and until such director's successor shall
have been duly elected and qualified or until his earlier death or resignation
or removal in accordance with the Articles of Incorporation or these Bylaws.
(b) Within the limits specified in the Articles of Incorporation, and subject to
the rights of the holders of any series of Preferred Stock to elect directors
under specific circumstances, the number of directors that shall constitute the
whole Board of Directors shall be fixed by, and may be increased or decreased
from time to time by, the affirmative vote of a majority of the members at any
time constituting the Board of Directors. Except as provided in the Articles of
Incorporation, and subject to the rights of the holders of any series of
Preferred Stock to elect directors under specific circumstances, newly created
directorships resulting from any increase in the number of directors and any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled by the affirmative vote
of a majority of the remaining directors then in office, even though less than a
quorum of the Board of Directors. Any director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
class of directors in which the new directorship was created or the vacancy
occurred and until such director's successor shall have been elected and
qualified or until his earlier death, resignation or removal. No decrease in the
number of directors constituting the Board of Directors shall shorten the term
of any incumbent director.
3.2. Qualifications. Directors need not be residents of the State of Nevada
--------------
or stockholders of the Company.
3.3. Place of Meeting; Order of Business. Except as otherwise provided by law,
meetings of the Board of Directors, regular or special, may be held either
within or without the State of Nevada, at whatever place is specified by the
person or persons calling the meeting. In the absence of specific designation,
the meetings shall be held at the principal office of the Company. At all
meetings of the Board of Directors, business shall be transacted in such order
as shall from time to time be determined by the Chairman of the Board, or in his
absence by the President, or by resolution of the Board of Directors.
3.4. Regular Meetings. Regular meetings of the Board of Directors shall be held,
in each case, at such hour and on such day as may be fixed by resolution of the
Board of Directors, without further notice of such meetings. The time or place
of holding regular meetings of the Board of Directors may be changed by the
Chairman of the Board by giving written notice thereof as provided in Paragraph
3.6 hereof.
3.5. Special Meetings. Special meetings of the Board of Directors shall
-----------------
be held, whenever called by the Chairman of the Board or by resolution
adopted by the Board of Directors, in each case, at such hour and on such day as
may be stated in the notice of the meeting.
3.6. Attendance at and Notice of Meetings. Written notice of the time and place
of, and general nature of the business to be transacted at, all special meetings
of the Board of Directors, and written notice of any change in the time or place
of holding the regular meetings of the Board of Directors, shall be given to
each director personally or by mail or by telegraph, telecopier or similar
communication at least one day before the day of the meeting; provided, however,
that notice of any meeting need not be given to any director if waived by him in
writing, or if he shall be present at such meeting. Participation in a meeting
of the Board of Directors shall constitute presence in person at such meeting,
except where a person participates in the meeting for the express purpose of
objecting to the transaction of any business on the ground that the meeting is
not lawfully called or convened.
3.7. Quorum of and Action by Directors. A majority of the directors in office
shall constitute a quorum of the Board of Directors for the transaction of
business; but a lesser number may adjourn from day to day until a quorum is
present. Except as otherwise provided by law or in these Bylaws, all questions
shall be decided by the vote of a majority of the directors present at a meeting
at which a quorum is present.
3.8. Board and Committee Action Without a Meeting. Unless otherwise restricted
by the Articles of Incorporation or these Bylaws, any action required or
permitted to be taken at a meeting of the Board of Directors or any committee
thereof may be taken without a meeting if a consent in writing, setting forth
the action so taken, is signed by all the members of the Board of Directors or
such committee, as the case may be, and shall be filed with the Secretary.
3.9. Board and Committee Telephone Meetings. Subject to the provisions required
or permitted by the NRS for notice of meetings, unless otherwise restricted by
the Articles of Incorporation or these Bylaws, members of the Board of
Directors, or members of any committee designated by the Board of Directors, may
participate in and hold a meeting of such Board of Directors or committee by
means of 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 pursuant to this Paragraph 3.9 shall constitute
presence in person at such meeting, except where a person participates in the
meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
3.10. Compensation. Directors shall receive such compensation for their
------------
services as shall be determined by the Board of Directors.
3.11. Removal. Directors may be removed from office in the matter set forth
-------
in the Articles of Incorporation, subject to the rights of the holders of
any series of Preferred Stock to elect directors under specific
circumstances.
3.12. Committees of the Board of Directors.
------------------------------------
(a) The Board of Directors, by resolution adopted by a majority of the full
Board of Directors, may designate from among its members one or more committees
(in addition to those listed below), each of which shall be comprised of one or
more of its members, and may designate one or more of its members as alternate
members of any committee, who may, subject to any limitations by the Board of
Directors, replace absent or disqualified members at any meeting of that
committee. Any such committee, to the extent provided in such resolution or in
the Articles of Incorporation or these Bylaws, shall have and may exercise all
of the authority of the Board of Directors to the extent permitted by the NRS,
including, without limitation, the power and authority to declare a dividend, to
authorize the issuance of stock or to adopt a plan of merger pursuant to Section
78.125 of the NRS. Any such committee may authorize the seal of the Company to
be affixed to all papers which may require it. In addition to the above, such
committee or committees shall have such other powers and limitations of
authority as may be determined from time to time by resolution adopted by the
Board of Directors.
(b) The Board of Directors shall have the power at any time to change the
membership of any such committee and to fill vacancies in it. A majority of the
number of members of any such committee shall constitute a quorum for the
transaction of business unless a greater number is required by a resolution
adopted by the Board of Directors. The act of the majority of the members of a
committee present at any meeting at which a quorum is present shall be the act
of such committee, unless the act of a greater number is required by a
resolution adopted by the Board of Directors. Each such committee may elect a
chairman and appoint such subcommittees and assistants as it may deem necessary.
Except as otherwise provided by the Board of Directors, meetings of any
committee shall be conducted in accordance with Paragraphs 3.4, 3.5, 3.6, 3.7,
3.8, 3.9 and 7.3 hereof. In the absence or disqualification of a member of a
committee, the member or members present at any meeting and not disqualified
from voting, whether or not constituting a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
the absent or disqualified member. Any member of any such committee elected or
appointed by the Board of Directors may be removed by the Board of Directors
whenever in its judgment the best interests of the Company will be served
thereby, but such removal shall be without prejudice to the contract rights, if
any, of the person so removed. Election or appointment of a member of a
committee shall not of itself create contract rights.
(c) Any action taken by any committee of the Board of Directors shall promptly
be recorded in the minutes and filed with the Secretary.
(d) Notwithstanding anything herein contained to the contrary, the composition
and powers of any committee of the Board of Directors are expressly subject to
the requirements of any stock exchange or quotation system on which the capital
stock of the Company is traded or quoted, or the Exchange Act.
(e) Executive Committee. The Board of Directors may create an Executive
Committee of the Board of Directors, which committee shall have and may exercise
all the powers and authority of the Board of Directors between regular or
special meetings of the Board of Directors in the management of the business and
affairs of the Company, except to the extent limited by Nevada law. Without
limiting the generality of the foregoing, the Executive Committee shall have the
power and authority to (i) declare dividends on any class of capital stock of
the Company, (ii) authorize the issuance of capital stock of the Company, (iii)
adopt plans of merger, and (iv) in reference to amending the Articles of
Incorporation, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of capital stock adopted by the Board of
Directors, fix the designations and any of the preferences or rights of such
shares relating to dividends, redemptions, dissolution, any distribution of
assets of the Company or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the Company or fix the number of shares of
any series of stock or authorize the increase or decrease of the shares of any
series.
(f) Audit Committee. The Board of Directors may create an Audit Committee of the
Board of Directors whose members shall consist solely of directors who are not
employees or affiliates of the Company and have no relationship with the Company
that would, in the judgment of the Board of Directors, interfere with their
exercise of independent judgment as a member of such committee. The Audit
Committee shall have and may exercise the power and authority to recommend to
the Board of Directors the accounting firm to be selected by the Board of
Directors or to be recommended by it for stockholder approval, as independent
auditor of the financial statements of the Company and its subsidiaries, and to
act on behalf of the Board of Directors in meeting and reviewing with the
independent auditors, the chief accounting officer, the chief internal auditor,
if any, and the appropriate corporate officers, matters relating to corporate
financial reporting and accounting procedures and policies, adequacy of
financial, accounting and operating controls and the scope of the respective
audits of the independent auditors and the internal auditor, if any. The Audit
Committee shall also review the results of such audits with the respective
auditors and shall report the results of those reviews to the Board of
Directors. The Audit Committee shall submit to the Board of Directors any
recommendations it may have from time to time with respect to financial
reporting and accounting practices and policies and financial, accounting and
operational controls and safeguards. The Audit Committee may submit to the
Compensation Committee any recommendations it may have with respect to the
compensation of the chief accounting officer and the chief internal auditor, if
any. The Board of Directors shall, by resolution adopted by a majority of the
Board of Directors, designate not less than two of its qualifying members from
time to time to constitute members of the Audit Committee.
(g) Nominating Committee. The Board of Directors may create a Nominating
Committee of the Board of Directors, which committee shall have and may exercise
the power and authority to recommend to the Board of Directors prior to each
annual meeting of the stockholders of the Company: (i) the appropriate size and
composition of the Board of Directors; and (ii) nominees: (1) for election to
the Board of Directors for whom the Company should solicit proxies; (2) to serve
as proxies in connection with the annual stockholders' meeting; and (3) for
election to all committees of the Board of Directors other than the Nominating
Committee. The Board of Directors shall, by resolution adopted by a majority of
the Board, designate one or more of its members from time to time to constitute
members of the Nominating Committee.
(h) Compensation Committee. The Board of Directors may create a Compensation
Committee of the Board of Directors, whose members shall consist solely of
directors who are not employees or affiliates of the Company and have no
relationship with the Company that would, in the judgment of the Board of
Directors, interfere with their exercise of independent judgment as a member of
such committee. The Compensation Committee shall have and may exercise all the
power and authority to (i) establish a general compensation policy for the
officers and employees of the Company, including to establish and at least
annually review officers' salaries and levels of officers' participation in the
benefit plans of the Company, (ii) prepare any reports that may be required by
the regulations of the Securities and Exchange Commission or otherwise relating
to officer compensation, (iii) approve any increases in directors' fees, and
(iv) exercise all other powers of the Board of Directors with respect to matters
involving the compensation of employees and the employee benefits of the Company
as shall be delegated by the Board of Directors to the Compensation Committee
from time to time. Without limiting the generality of the foregoing, the
Compensation Committee shall have the power and authority to authorize the
issuance of capital stock of the Company pursuant to any compensation or benefit
plan or arrangement adopted or entered into by the Company. The Board of
Directors shall, by resolution adopted by a majority of the Board, designate two
or more of its qualifying members from time to time to constitute members of the
Compensation Committee.
ARTICLE IV
Officers
4.1. Designation. The officers of the Company shall consist of a Chairman of the
Board, Chief Executive Officer, President, Chief Operating Officer, Secretary,
Treasurer, Controller and such Executive, Senior or other Vice Presidents,
Assistant Secretaries, Assistant Treasurers, Assistant Controllers and other
officers as may be elected or appointed by the Board of Directors from time to
time. Any number of offices may be held by the same person.
4.2. Chairman of the Board. The Chairman of the Board shall be the Chief
Executive Officer of the Company and shall preside at all meetings of the
stockholders and of the Board of Directors. Except where by law the signature of
the President is required, the Chairman of the Board shall possess the same
power as the President to sign all contracts, certificates and other instruments
of the Company which may be authorized by the Board of Directors. The Chairman
of the Board shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors. In the absence or incapacity to act of the President, the
Chairman of the Board shall serve as acting President, and when so acting, shall
have all the powers of and be subject to the restrictions of such office.
4.3. President. The President shall be the Chief Operating Officer of the
Company and shall have general supervision and control of the business, affairs
and properties of the Company and its general officers, and shall see that all
orders and resolutions of the Board of Directors are carried into effect. He
shall have the power to appoint and remove all subordinate officers, agents and
employees, except those elected or appointed by the Board of Directors, and
shall execute all bonds, mortgages, contracts and other instruments of the
Company requiring a seal, under the seal of the Company, except where required
or permitted by law to be otherwise signed and executed and except that the
other officers of the Company may sign and execute documents when so authorized
by these Bylaws, the Board of Directors or the President. The President shall
also perform such other duties and may exercise such other powers as from time
to time may be assigned to him by these Bylaws or by the Board of Directors. In
the incapacity to act of the Chairman of the Board, the President shall serve as
acting Chairman of the Board, and when so acting, shall have all the powers of
and be subject to the restrictions of such office.
4.4. Chief Operating Officer. As the Chief Operating Officer, the President
shall have general charge and supervision of the day to day operations of the
Company (subject to the direction of the Board of Directors), and, in general,
shall perform such other duties as are incident to the office of a chief
operating officer of a corporation, including those duties customarily performed
by persons occupying such office, and shall perform such other duties as, from
time to time, may be assigned to him by the Board of Directors.
4.5. Vice President. The Board of Directors may appoint such Vice Presidents as
may be recommended by the President or as the directors deem necessary or
appropriate. Vice Presidents may be designated as Senior Vice Presidents,
Executive Vice Presidents or some other designation as the Board of Directors
deems appropriate (each a "Vice President"). Each Vice President shall perform
such duties as the Board of Directors may from time to time prescribe and have
such other powers as the President may from time to time prescribe.
4.6. Secretary. The Secretary shall attend the meetings of the Board of
Directors and all meetings of stockholders and record the proceedings thereof in
a book or books to be kept for that purpose; the Secretary shall also perform
like duties for the standing committees when required. The Secretary shall give,
or cause to be given, notice of all meetings of the stockholders and special
meetings of the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors or President, under whose supervision he
shall be. If the Secretary shall be unable or shall refuse to cause to be given
notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there be no Assistant Secretary, then the Chairman of the
Board may choose another officer to cause such notice to be given. The Secretary
shall have custody of the seal of the Company and the Secretary or any Assistant
Secretary, if there be one, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by the signature
of the Secretary or by the signature of any such Assistant Secretary. The Board
of Directors may give general authority to any other officer to affix the seal
of the Company and to attest the affixing by his signature. The Secretary shall
see that all books, reports, statements, certificates and other documents and
records required by law to be kept or filed are properly kept or filed, as the
case may be.
4.7. Treasurer. The Treasurer shall have the custody of the Company's funds and
securities and shall keep full and accurate accounts of receipt and
disbursements in books belonging to the Company and shall deposit all moneys and
other valuable effects in the name and to the credit of the Company in such
depositories as may be designated by the Board of Directors. The Treasurer shall
disburse the funds of the Company as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall render to the Chairman
of the Board and the Board of Directors, at its regular meeting, or when the
Board of Directors so requires, an account of all his transactions as Treasurer
and of the financial condition of the Company. If required by the Board of
Directors, the Treasurer shall give the Company 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
Company, 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 Company.
4.8. Controller. The Controller, if there is one, shall be the chief accounting
officer of the Company, shall maintain records of all assets, liabilities, and
transactions of the Company and shall be responsible for the design,
installation and maintenance of accounting and cost control systems and
procedures for the Company and shall perform such other duties and have such
other powers as from time to time may be assigned to him by the Board of
Directors, the Audit Committee or the President.
4.9. Assistant Secretaries. Except as may be otherwise provided in these Bylaws,
Assistant Secretaries, if there be any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors,
the President, any Vice President, or the Secretary, and in the absence of the
Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Secretary.
4.10. Assistant Treasurers. Assistant Treasurers, if there be any, shall perform
such duties and have such powers as from time to time may be assigned to them by
the Board of Directors, the President or the Treasurer, and in the absence of
the Treasurer or in the event of his disability or refusal to act, shall perform
the duties of the Treasurer, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Treasurer. If required by the
Board of Directors, an Assistant Treasurer shall give the Company 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 Company, 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 Company.
4.11. Assistant Controllers. Except as may be otherwise provided in these
Bylaws, Assistant Controllers, if there be any, shall perform such duties and
have such powers as from time to time may be assigned to them by the Board of
Directors, the President, any Vice President, or the Controller, and in the
absence of the Controller or in the event of his disability or refusal to act,
shall perform the duties of the Controller, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Controller.
4.12. Other Officers. Such other officers as the Board of Directors may choose
shall perform such duties and have such powers, subordinate to those powers
specifically delegated to certain officer in these Bylaws, as from time to time
may be assigned to them by the Board of Directors. The President of the Company
shall have the power to choose such other officers and to prescribe their
respective duties and powers, subject to control by the Board of Directors.
4.13. Vacancies. Whenever any vacancies shall occur in any office by death,
resignation, increase in the number of offices of the Company, or otherwise, the
same shall be filled by the Board of Directors (or the President, in accordance
with Paragraph 4.3 of these Bylaws, subject to control by the Board of
Directors), and the officer so appointed shall hold office until such officer's
successor is elected or appointed in accordance with these Bylaws or until his
earlier death, resignation or removal.
4.14. Removal. Any officer or agent of the Company may be removed by the Board
of Directors whenever in its judgment the best interests of the Company will be
served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed. Election or appointment of an officer
or agent shall not of itself create contract rights.
4.15. Action with Respect to Securities of Other Corporations. Unless otherwise
directed by the Board of Directors, the Chairman of the Board, the President,
any Vice President and the Treasurer of the Company shall each have power to
vote and otherwise act on behalf of the Company, in person or by proxy, at any
meeting of security holders of or with respect to any action of security holders
of any other corporation in which the Company may hold securities and otherwise
to exercise any and all rights and powers which the Company may possess by
reason of its ownership of securities in such other corporation.
ARTICLE V
Capital Stock
5.1. Certificates for Shares. The certificates for shares of the capital stock
of the Company shall be in such form as may be approved by the Board of
Directors from time to time. The Company shall deliver one or more certificates
to each of the Company's stockholders, which shall represent the number of
shares to which such stockholder is entitled. Certificates shall be signed by
the Chairman of the Board, the President or a Vice President and either the
Secretary or an Assistant Secretary, and may bear the seal of the Company or a
facsimile thereof. The signatures of such officers upon a certificate may be
facsimiles. The stock record books and the blank stock certificates shall be
kept by the Secretary, or at the office of such transfer agent or transfer
agents as the Board of Directors may from time to time by resolution determine.
In case any officer who has signed or whose facsimile signature has been placed
upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Company with the same effect as
if such person were such officer at the date of its issuance.
5.2. Multiple Classes of Stock. As the Company is authorized to issue more than
one class of capital stock and more than one series of preferred stock, a
statement of the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualification, limitations or restrictions of such preferences and/or rights
shall be set forth in full or summarized on the face or back of each of the
certificates the Company issues to represent such class or series of stock;
provided that, to the extent allowed by law, in lieu of such statement, the face
or back of such certificates may state that the Company will furnish a copy of
such statement without charge to each requesting stockholder.
5.3. Transfer of Shares. The shares of stock of the Company shall be
transferable only on the books of the Company by the holders thereof in person
or by their duly authorized attorneys or legal representatives upon surrender
and cancellation of certificates for a like number of shares.
5.4. Ownership of Shares. As the Company is entitled to treat the holder of
record of any share or shares of capital stock as the holder in fact thereof
under Paragraph 2.5 hereof, the Company 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 the State of Nevada.
5.5. Regulations Regarding Certificates. The Board of Directors shall
------------------------------------
have the power and authority to make all such rules and regulations as they
may deem expedient concerning the issue, transfer and registration or the
replacement of certificates for shares of capital stock of the Company.
5.6. Lost or Destroyed Certificates. The Board of Directors may determine the
conditions upon which a new certificate representing shares of the capital stock
of the Company may be issued in place of a certificate which is alleged to have
been lost, stolen or destroyed; and may, in its discretion, require the owner of
such certificate or his legal representative to give bond, with sufficient
surety, to indemnify the Company and each transfer agent and registrar against
any and all losses or claims that may arise by reason of the issue of a new
certificate in the place of the one so lost, stolen or destroyed.
ARTICLE VI
Indemnification
6.1. General. The Company shall indemnify its directors,officers,employees,
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agents and others as provided in the Articles of Incorporation.
6.2. Request for Indemnification. A party requesting indemnification (the
"Indemnitee") shall submit notice of such request in writing to the Secretary of
the Company. Such notice of request for indemnification shall contain sufficient
information to reasonably inform the Company about the nature and extent of the
indemnification or advance sought by the Indemnitee. The Secretary shall
promptly advise the Board of Directors of any such request.
6.3. Extension of Rights. No amendment, alteration or repeal of this Article VI
or any provision hereof shall be effective as to any Indemnitee for acts, events
and circumstances that occurred, in whole or in part, before such amendment,
alteration or repeal. The provisions of this Article VI shall continue as to an
Indemnitee whose Corporate Status has ceased for any reason and shall inure to
the benefit of his heirs, executors and administrators. Neither the provisions
of this Article VI nor those of any agreement to which the Company is a party
shall be deemed to preclude the indemnification of any person who is not
specified in this Article VI as having the right to receive indemnification or
is not a party to any such agreement, but whom the Company has the power or
obligation to indemnify under the provisions of the NRS.
6.4. Insurance and Subrogation. The Company shall not be liable under the
Articles of Incorporation or this Article VI to make any payment of amounts
otherwise indemnifiable hereunder if, but only to the extent that, the
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise. In the event of any payment hereunder,
the Company shall be subrogated to the extent of such payment to all the rights
of recovery of the Indemnitee, who shall execute all papers required and take
all action reasonably requested by the Company to secure such rights, including
execution of such documents as are necessary to enable the Company to bring suit
to enforce such rights.
6.5. Severability. If any provision or provisions of this Article VI shall be
held to be invalid, illegal or unenforceable for any reason whatsoever, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby; and, to the fullest extent possible,
the provisions of this Article VI shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or unenforceable.
6.6. Notices. Promptly after receipt by the Indemnitee of notice of the
commencement of any action, suit or proceeding, the Indemnitee shall, if he
anticipates or contemplates making a claim for expenses or an advance pursuant
to the terms of the Articles of Incorporation and this Article VI, notify the
Company of the commencement of such action, suit or proceeding; provided,
however, that any delay in so notifying the Company shall not constitute a
waiver or release by the Indemnitee of rights hereunder and that any omission by
the Indemnitee to so notify the Company shall not relieve the Company from any
liability that it may have to the Indemnitee otherwise than under the Articles
of Incorporation or this Article VI. Any communication required or permitted to
the Company shall be addressed to the Secretary and any such communication to
the Indemnitee shall be addressed to the Indemnitee's address as shown on the
Company's records unless he specifies otherwise and shall be personally
delivered or delivered by overnight mail delivery. Any such notice shall be
effective upon receipt.
6.7. Contractual Rights. The right to be indemnified or to the advancement or
reimbursement of expenses (a) is a contract right based upon good and valuable
consideration, pursuant to which the Indemnitee may ▇▇▇ as if these provisions
were set forth in a separate written contract between the Indemnitee and the
Company, (b) is and is intended to be retroactive and shall be available as to
events occurring prior to the adoption of these provisions, and (c) shall
continue after any rescission or restrictive modification of such provisions as
to events occurring prior thereto.
ARTICLE VII
Miscellaneous Provisions
7.1. Bylaw Amendments. These Bylaws may be amended as provided in the
----------------
Articles of Incorporation.
7.2. Books and Records. The Company shall keep books and records of
------------------
account and shall keep minutes of the proceedings of its stockholders, its
Board of Directors and each committee of its Board of Directors.
7.3. Notices; Waiver of Notice. Whenever any notice is required to be given to
any stockholder, director or committee member under the provisions of the NRS,
the Articles of Incorporation or these Bylaws, said notice shall be deemed to be
sufficient if given by deposit of the same in the United States mail, with
postage paid thereon, addressed to the person entitled thereto at his address as
it appears on the records of the Company, and such notice shall be deemed to
have been given on the day of such mailing.
Whenever any notice is required to be given to any stockholder,
director or committee member under the provisions of the NRS, the Articles of
Incorporation or these Bylaws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be equivalent to the giving of such notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened.
7.4. Resignations. Any director or officer may resign at any time.
------------
Such resignations shall be made in writing and shall take effect at the
time specified therein, or, if no time be specified, at the time of its receipt
by the President or the Secretary. The acceptance of a resignation shall not be
necessary to make it effective, unless expressly so provided in the resignation.
7.5. Seal. The seal of the Company shall be in such form as the Board of
----
Directors may adopt.
7.6. Fiscal Year. The fiscal year of the Company shall end on the 31st
------------
day of December of each year or as otherwise provided by a resolution adopted
by the Board of Directors.
7.7. Facsimile Signatures. In addition to the provisions for the use
---------------------
of facsimile signatures elsewhere specifically authorized in these Bylaws,
facsimile signatures of any director or officer of the Company may be used
whenever and as authorized by the Board of Directors.
7.8. Reliance upon Books, Reports and Records. Each director and each member of
any committee designated by the Board of Directors shall, in the performance of
his duties, be fully protected in relying in good faith upon the books of
account or reports made to the Company by any of its officers, or by an
independent certified public accountant, or by an appraiser selected with
reasonable care by the Board of Directors or by any such committee, or in
relying in good faith upon other records of the Company.
ARTICLE VIII
Adoption of Bylaws
8.1. Adoption. These Bylaws were adopted by the Board of Directors as of
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June 12, 2002.
Table of Contents
ARTICLE I Offices.............................................................1
1.1. Registered Office.....................................................1
1.2. Other Offices.........................................................1
ARTICLE II Meetings of Stockholders...........................................1
2.1. Place of Meetings.....................................................1
2.2. Annual Meeting........................................................1
2.3. Special Meetings......................................................1
2.4. Notice of Meeting.....................................................1
2.5. Registered Holders of Shares; Closing of Share Transfer Records; and
Record Date...........................................................1
2.6. Quorum of Stockholders; Adjournment...................................1
2.7. Voting by Stockholders................................................1
2.8. Business to be Conducted at Annual or Special Stockholder Meetings....1
2.9. Proxies...............................................................1
2.10. Approval or Ratification of Acts or Contracts by Stockholders........1
2.11. Inspectors of Election...............................................1
ARTICLE III Directors.........................................................1
3.1. Powers, Number, Classification and Tenure.............................1
3.2. Qualifications........................................................1
3.3. Place of Meeting; Order of Business...................................1
3.4. Regular Meetings......................................................1
3.5. Special Meetings......................................................1
3.6. Attendance at and Notice of Meetings..................................1
3.7. Quorum of and Action by Directors.....................................1
3.8. Board and Committee Action Without a Meeting..........................1
3.9. Board and Committee Telephone Meetings................................1
3.10. Compensation.........................................................1
3.11. Removal..............................................................1
3.12. Committees of the Board of Directors.................................1
ARTICLE IV Officers...........................................................1
4.1. Designation...........................................................1
4.2. Chairman of the Board.................................................1
4.3. President.............................................................1
4.4. Chief Operating Officer...............................................1
4.5. Vice President........................................................1
4.6. Secretary.............................................................1
4.7. Treasurer.............................................................1
4.8. Controller............................................................1
4.9. Assistant Secretaries.................................................1
4.10. Assistant Treasurers.................................................1
4.11. Assistant Controllers................................................1
4.12. Other Officers.......................................................1
4.13. Vacancies............................................................1
4.14. Removal..............................................................1
4.15. Action with Respect to Securities of Other Corporations..............1
ARTICLE V Capital Stock.......................................................1
5.1. Certificates for Shares...............................................1
5.2. Multiple Classes of Stock.............................................1
5.3. Transfer of Shares....................................................1
5.4. Ownership of Shares...................................................1
5.5. Regulations Regarding Certificates....................................1
5.6. Lost or Destroyed Certificates........................................1
ARTICLE VI Indemnification....................................................1
6.1. General...............................................................1
6.2. Request for Indemnification...........................................1
6.3. Extension of Rights...................................................1
6.4. Insurance and Subrogation.............................................1
6.5. Severability..........................................................1
6.6. Notices...............................................................1
6.7. Contractual Rights....................................................1
ARTICLE VII Miscellaneous Provisions..........................................1
7.1. Bylaw Amendments......................................................1
7.2. Books and Records.....................................................1
7.3. Notices; Waiver of Notice.............................................1
7.4. Resignations..........................................................1
7.5. Seal..................................................................1
7.6. Fiscal Year...........................................................1
7.7. Facsimile Signatures..................................................1
7.8. Reliance upon Books, Reports and Records..............................1
ARTICLE VIII Adoption of Bylaws...............................................1
8.1. Adoption..............................................................1