Attached files
| file | filename |
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| S-1 - VITAMIN BLUE, INC. FORM S-1 FEBRUARY 10, 2010 - VITAMIN BLUE, INC. | vbs1201002.htm |
| EX-3.1 - CERTIFICATE OF INCORPORATION - VITAMIN BLUE, INC. | vbs1201002ex3-1.htm |
| EX-23.1 - CONSENT OF HJ ASSOCIATES & CONSULTANTS, LLP, INDEPENDENT PUBLIC ACCOUNTANTS - VITAMIN BLUE, INC. | vbs1201002ex23-1.htm |
| EX-99.1 - FORM OF SUBSCRIPTION AGREEMENT FOR SALES OF OUR COMMON STOCK - VITAMIN BLUE, INC. | vbs1201002ex99-1.htm |
| EX-5.1 - OPINION OF H. MELVILLE HICKS, JR. - VITAMIN BLUE, INC. | vbs1201002ex5-1.htm |
Exhibit 3.2
BYLAWS
OF
VITAMIN
BLUE, INC.
A
Delaware Corporation
ARTICLE
I
STOCKHOLDERS
Section 1.1. Annual
Meetings. An annual meeting of stockholders shall be held for the
election of directors at such date, time and place, either within or without the
State of Delaware, as may be designated by resolution of the Board of Directors
from time to time. Any other proper business may be transacted at the annual
meeting.
Section 1.2. Special
Meetings. Special meetings of stockholders for any purpose or
purposes may be called at any time by the Board of Directors, or by a committee
of the Board of Directors which has been duly designated by the Board of
Directors and whose powers and authority include the power to call such
meetings, but such special meetings may not be called by any other person or
persons.
Section 1.3. Notice of
Meetings. Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given which shall
state the place, date and hour of the meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called. Unless
otherwise provided by law, the written notice of any meeting shall be given not
less than ten nor more than sixty days before the date of the meeting to each
stockholder entitled to vote at such meeting. If mailed, such notice shall be
deemed to be given when deposited in the mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the
Corporation.
Section
1.4. Adjournments. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty 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 meeting.
Section
1.5. Quorum. At each meeting of stockholders, except where
otherwise provided by law or the Certificate of Incorporation or these Bylaws,
the holders of a majority of the outstanding shares of stock entitled to vote at
the meeting, present in person or by proxy, shall constitute a quorum. In the
absence of a quorum, the stockholders so present may, by majority vote, adjourn
the meeting from time to time in the manner provided in Section 1.4 of these
Bylaws until a quorum shall attend. Shares of its own stock belonging to the
Corporation or to another corporation, if a majority of the shares entitled to
vote in the election of directors of such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote nor be counted
for quorum purposes; provided, however, that the foregoing shall not limit the
right of any corporation to vote stock, including but not limited to its own
stock, held by it in a fiduciary capacity.
Section 1.6. Organization.
Meetings of stockholders shall be presided over by the Chairman of the Board, if
any, or in his absence by the Vice Chairman of the Board, if any, or in his
absence by the President, or in his absence by a Vice President, or in the
absence of the foregoing persons, by a chairman designated by the Board of
Directors, or in the absence of such designation, by a chairman chosen at the
meeting. The Secretary shall act as secretary of the meeting, but in his absence
the chairman of the meeting may appoint any person to act as secretary of the
meeting.
Section 1.7. Voting;
Proxies. Except as otherwise provided by the Certificate of
Incorporation, each stockholder entitled to vote at any meeting of stockholders
shall be entitled to one vote for each share of stock held by him which has
voting power upon the matter in question. Each stockholder entitled to vote at a
meeting of stockholders may authorize another person or persons to act for him
by proxy, but no such proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A stockholder may revoke any proxy which is not irrevocable
by attending the meeting and voting in person or by filing an instrument in
writing revoking the proxy or another duly executed proxy bearing a later date
with the Secretary of the Corporation. Voting at meetings of stockholders need
not be by written ballot and need not be conducted by inspectors unless the
Board of Directors, or holders of a majority of the outstanding shares of all
classes of stock entitled to vote thereon present in person or by proxy at such
meeting shall so determine. At all meetings of stockholders for the election of
directors a plurality of the votes cast shall be sufficient to elect. All other
elections and questions shall, unless otherwise provided by law or by the
Certificate of Incorporation or these Bylaws, be decided by the vote of the
holders of a majority of the outstanding shares of stock entitled to vote
thereon present in person or by proxy at the meeting.
Section 1.8. Fixing Date for
Determination of Stockholders of Record.
(a) In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which shall not
precede the date such record date is fixed and shall not be more than sixty nor
less than ten days before the date of such meeting, nor more than sixty days
prior to any other action. If no record date is fixed, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given. The record date for any other purpose other than
stockholder action by written consent shall be at the close of business on the
day on which the Board of Directors adopts the resolution relating thereto. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
(b) In
order that the corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. Any
stockholder of record seeking to have the stockholders authorize or take
corporate action by written consent shall, by written notice to the Secretary,
request the Board of Directors to fix a record date. The Board of Directors
shall promptly, but in all events within ten (10) days after the date on which
such a request is received, adopt a resolution fixing the record date. If no
record date has been fixed by the Board of Directors within ten (10) days of the
date on which such a request is received, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or any officer or agent of the corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by applicable law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the Board of
Directors adopts the resolution taking such prior action.
Section 1.9. List of
Stockholders Entitled to Vote. The Secretary shall prepare and make,
at least ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Nothing contained in this Section shall require
the corporation to include electronic mail addresses or other electronic contact
information on such list. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting for a period of at least ten
(10) days prior to the meeting during business hours, at the principal place of
business of the Corporation. If the meeting is to be held at a place,
then the list shall be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 1.10. Notice of Stockholder
Business and Nominations.
(A) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of Directors of the
Corporation and the proposal of business to be considered by the stockholders
may be made at an annual meeting of stockholders (a) pursuant to the
Corporation's notice of meeting delivered pursuant to these Bylaws, (b) by or at
the direction of the Chairman of the Board or the Board of Directors or (c) by
any stockholder of the Corporation who is entitled to vote at the meeting, who
complied with the notice procedures set forth in Regulation 14A under the
Securities and Exchange Act of 1934, as amended (the "Exchange Act") and who was
a stockholder of record at the time such notice is delivered to the Secretary of
the Corporation.
(B) Special Meetings of Stockholders.
Only such business shall be conducted at a special meeting of stockholders as
shall have been brought before the meeting pursuant to the Corporation's notice
of meeting pursuant to these Bylaws. Nominations of persons for election to the
Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of meeting (1)
by or at the direction of the Board of Directors or (2) by any stockholder of
the Corporation who is entitled to vote at the meeting, who complies with the
notice procedures set forth in this Bylaw and who is a stockholder of record at
the time such notice is delivered to the Secretary of the Corporation. In the
event the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
may nominate a person or persons (as the case may be), for election to such
position(s) as are specified in the Corporation's Notice of Meeting, if the
stockholder's notice as required by paragraph shall be delivered to the
Secretary at the principal executive offices of the Corporation not earlier than
the ninetieth day prior to such special meeting and not later than the close of
business on the later of the seventieth day prior to such special meeting or the
tenth day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting commence a new time period
for the giving of a stockholder's notice as described above.
(C) General. (1) Only persons who are
nominated in accordance with the procedures set forth in this Bylaw shall be
eligible to serve as directors and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the meeting in
accordance with the procedures set forth in this Bylaw. Except as otherwise
provided by law, the Certificate of Incorporation or these Bylaws, the chairman
of the meeting shall have the power and duty to determine whether a nomination
or any business proposed to be brought before the meeting was made in accordance
with the procedures set forth in this Bylaw and, if any proposed nomination or
business is not in compliance with this Bylaw, to declare that such defective
proposal or nomination shall be disregarded.
(2) For purposes of this Bylaw, "public
announcement" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
Section 1.11. Inspectors of
Elections; Opening and Closing the Polls.
(A) The Board of Directors,
in advance of any meeting, may, but need not, appoint one or more inspectors of
election to act at the meeting or any adjournment thereof. If an inspector or
inspectors are not appointed, the person presiding at the meeting may, but need
not, appoint one or more Inspectors. In case any person who may be
appointed as an Inspector fails to appear or act, the vacancy may be filled by
appointment made by the directors in advance of the meeting or at the meeting by
the person presiding thereat. Each inspector, if any, before entering
upon the discharge of his duties, shall take and design an oath faithfully to
execute the duties of inspectors at such meeting with strict impartiality and
according to best of his ability. The inspectors, if any, shall
determine the number of shares of stock represented at the meeting, the
existence of a quorum, the validity and effect of proxies, and shall receive
votes, ballots, or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes,
ballots, or consents, determine the result, and do such acts as are proper to
conduct the election or vote with fairness to all stockholders. On
request of the person presiding at the meeting, the inspector or inspectors, if
any, shall make a report in writing of any challenge, question, or matter
determined by him or them and execute a certificate of any fact found by him or
them.
(B) The chairman of the meeting shall
fix and announce at the meeting the date and time of the opening and the closing
of the polls for each matter upon which the stockholders will vote at a
meeting.
Section 1.12. Action by
Consent of Stockholders. Unless otherwise restricted by the
Certificate of Incorporation, any action required or permitted to be taken at
any annual or special meeting of the stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in
writing.
ARTICLE
II
BOARD
OF DIRECTORS
Section
2.1. Powers. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors of the
Corporation
Section 2.2. Number;
Qualifications. The Board of Directors shall consist of one or more
members, the number thereof to be determined from time to time by a resolution
adopted by a majority of the Board of Directors. Directors need not
be stockholders.
Section 2.3. Election;
Resignation; Removal; Vacancies. (a) The Board of Directors shall
initially consist of the persons elected as such by the incorporator, who shall
determine the class, if any, to which each Director is elected.
(b) Subject to the rights
of the holders of voting stock then outstanding, newly created directorships
resulting from any increase in the authorized number of directors or any
vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause may be filled
only by a majority vote of the Directors then in office, though less than a
quorum, and directors so chosen shall hold office for a term expiring at the
annual meeting of stockholders. No decrease in the number of
authorized directors constituting the entire Board of Directors shall shorten
the term on any incumbent director.
(c) Subject to the rights of
the holders of voting stock then outstanding, any director, or the entire Board
of Directors may be removed from office at any time, but only for cause and only
by the affirmative vote of the holders of at least 80% of the voting power of
all of the then outstanding shares of the voting stock, voting together as a
single class.
(d) A resignation from the
Board of Directors shall be deemed to take effect immediately upon its being
received by any incumbent corporate officer other than an officer who is also
the resigning director, unless some other time is specified
therein.
Section 2.4. Regular
Meetings. Regular meetings of the Board of Directors may be held at
such places within or without the State of Delaware and at such times as the
Board of Directors may from time to time determine, and if so determined notices
thereof need not be given.
Section 2.5. Special
Meetings. Special meetings of the Board of Directors may be held at
any time or place within or without the State of Delaware whenever called by the
President, any Vice President, the Secretary, or by any member of the Board of
Directors. Reasonable notice thereof shall be given by the person or persons
calling the meeting, not later than the second day before the date of the
special meeting.
Section 2.6. Telephonic
Meetings Permitted. Members of the Board of Directors, or any
committee designated by the Board, may participate in a meeting of such Board 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 Bylaw shall constitute presence
in person at such meeting.
Section 2.7. Quorum; Vote
Required for Action. At all meetings of the Board of Directors a
majority of the whole Board shall constitute a quorum for the transaction of
business. Except in cases in which the Certificate of Incorporation or these
Bylaws otherwise provide, the vote of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of
Directors. A majority of the directors present, whether or not a
quorum is present, may adjourn a meeting to another time and place.
Section 2.8. Organization.
Meetings of the Board of Directors shall be presided over by the Chairman of the
Board, if any, or in his absence by the Vice Chairman of the Board, if any, or
in his absence by the President, or in their absence by a chairman chosen at the
meeting. The Secretary shall act as secretary of the meeting, but in his absence
the chairman of the meeting may appoint any person to act as secretary of the
meeting.
Section 2.9. Informal Action
by Directors. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, any action required or permitted to be taken at
any meeting of the Board of Directors, or of any committee thereof, may be taken
without a meeting if all members of the Board or such committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
Section
2.10. Notwithstanding any other provisions of these Bylaws or any
provision of law which might otherwise permit a lesser vote or no vote, but in
addition to any affirmative vote of the holders of a particular class or series
of the capital stock of the Corporation required by law, these Bylaws, the
affirmative vote of the holders of at least 80% of the voting power of all of
the then outstanding shares of the voting stock, voting together as a single
class shall be required to alter, amend or repeal Section 2.3 of this Article II
of these Bylaws.
ARTICLE
III
COMMITTEES
Section
3.1. Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board of Directors, designate one or more
committees, each committee to consist of one or more of the directors of the
corporation. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member of the committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in a place of any such absent or disqualified
member. Any such committee, to the extent permitted by law and to the extent
provided in the resolution of the Board of Directors, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the corporation, and may authorize the
seal of the corporation to be affixed to all papers which may require
it.
Section 3.2 Committee
Rules. Unless the Board of Directors otherwise provides, each
committee designated by the Board of Directors may make, alter and repeal rules
for the conduct of its business. In the absence of such rules, each committee
shall conduct its business in the same manner as the Board of Directors conducts
its business pursuant to Article II of these Bylaws.
ARTICLE
IV
OFFICERS
Section 4.1. Executive
Officers; Election; Qualifications; Term of Office; Resignation; Removal;
Vacancies. The Board of Directors shall choose a President and
Secretary, and it may, if it so determines, choose a Chairman of the Board and a
Vice Chairman of the Board from among its members. The Board of Directors may
also choose one or more Vice Presidents, one or more Assistant Secretaries, a
Treasurer and one or more Assistant Treasurers. Each such officer shall hold
office until the first meeting of the Board of Directors after the annual
meeting of stockholders next succeeding this election, and until his successor
is elected and qualified or until his earlier resignation or removal. Any
officer may resign at any time upon written notice to the Corporation. The Board
of Directors may remove any officer with or without cause at any time, but such
removal shall be without prejudice to the contractual rights of such officer, if
any, with the Corporation. Any number of offices may be held by the same person.
Any vacancy occurring in any office of the Corporation by death, resignation,
removal or otherwise may be filled for the unexpired portion of the term by the
Board of Directors at any regular or special meeting.
Section 4.2. Powers and
Duties of Executive Officers. The officers of the Corporation shall
have such powers and duties in the management of the Corporation as may be
prescribed by the Board of Directors and, to the extent not so provided, as
generally pertain to their respective offices, subject to the control of the
Board of Directors. The Board of Directors may require any officer, agent or
employee to give security for the faithful performance of his
duties.
ARTICLE
V
STOCK
Section
5.1. Certificates. Every holder of stock shall be entitled
to have a certificate signed by or in the name of the Corporation by the
Chairman or Vice Chairman of the Board of Directors, if any, or the President or
a Vice President, and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary, of the Corporation, certifying the number
of shares owned by him in the Corporation. Any of or all the signatures on the
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent, or registrar at the date
of issue.
Section 5.2. Lost, Stolen or
Destroyed Stock Certificates; Issuance of New Certificates. The
Corporation may issue a new certificate of stock in the place of any certificate
theretofore issued by it, alleged to have been lost, stolen or destroyed, and
the Corporation may require the owner of the lost, stolen or destroyed
certificate, or his legal representative, to give the Corporation a bond
sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
Section
5.3 Uncertificated Shares. Subject to any conditions
imposed by the General Corporation Law, the Board of Directors of the
Corporation may provide by resolution or resolutions that some or all of any or
all classes or series of the stock of the Corporation shall be uncertificated
shares. Within a reasonable time after the issuance or transfer of
any uncertificated shares, the Corporation shall send to the registered owner
thereof any written notice prescribed by the General Corporation
Law.
Section 5.4 Fractional
Share Interests. The Corporation may, but shall not be required to,
issue fractions of a share. If the Corporation does not issue
fractions of a share, it shall (1) arrange for the disposition of fractional
interests by those entitled thereto, (2) pay in cash the fair value of fractions
of a share as of the time when those entitled to receive such fractions as
determined, or (3) issue scrip or warrants in registered form (represented by a
certificate) or bearer form (represented by a certificate) which shall entitle
the holder to receive a full share upon the surrender of such scrip or warrants
aggregating a full share. A certificate for a fractional share, but
scrip or warrants shall not unless otherwise provided therein, shall entitle the
holder to exercise voting rights, to receive dividends thereon, and to
participate in any of the assets of the Corporation in the event of
liquidation. The Board of Directors may cause scrip or warrants to be
issued subject to the conditions that they shall become void if not exchanged
for certificates representing the full shares before a specified date, or
warrants which are exchangeable may be sold by the Corporation and the proceeds
thereof distributed to the holders of scrip or warrants, or subject to any other
conditions which the Board of Directors may impose.
Section 5.5. Stock
Transfers. Upon compliance with provisions restricting the transfer
or registration of transfer of shares of stock, if any, transfers or
registration of transfers of shares of stock of the Corporation shall be made
only on the stock ledger of the Corporation by the registered holder thereof, or
by his attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary of the Corporation or with a transfer agent or a
registrar, if any, and in the case of shares represented by a certificate or
certificates on surrender of the certificate or certificates for such shares of
stock properly endorsed and the payment of all taxes due thereon.
ARTICLE
VI
INDEMNIFICATION
Section 6.1 Right to
Indemnification. The Corporation shall indemnify and hold harmless,
to the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person (an "Indemnitee") who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding"), by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director or officer of the Corporation or,
while a director or officer of the corporation, is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, enterprise or nonprofit
entity, including service with respect to employee benefit plans, against all
liability and loss suffered and expenses (including attorneys' fees) reasonably
incurred by such Indemnitee. Notwithstanding the preceding sentence, except as
otherwise provided in Section 6.3, the Corporation shall be required to
indemnify an Indemnitee in connection with a proceeding (or part thereof)
commenced by such Indemnitee only if the commencement of such proceeding (or
part thereof) by the Indemnitee was authorized by the Board of Directors of the
Corporation.
Section 6.2 Prepayment of
Expenses. The Corporation shall pay the expenses (including
attorneys' fees) incurred by an Indemnitee in defending any proceeding in
advance of its final disposition, provided, however, that, to the extent
required by law, such payment of expenses in advance of the final disposition of
the proceeding shall be made only upon receipt of an undertaking by the
Indemnitee to repay all amounts advanced if it should ultimately be determined
that the Indemnitee is not entitled to be indemnified under this Article VI or
otherwise.
Section 6.3. Claims. If a
claim for indemnification or payment of expenses under this Article VI is not
paid in full within sixty (60) days after a written claim therefor by the
Indemnitee has been received by the Corporation, the Indemnitee may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the Indemnitee is
not entitled to the requested indemnification or payment of expenses under
applicable law.
Section 6.4. Nonexlusivity
of Rights. The rights conferred on any Indemnitee by this Article VI
shall not be exclusive of any other rights which such Indemnitee may have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation, these Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 6.5. Other
Sources. The Corporation's obligation, if any, to indemnify or to
advance expenses to any Indemnitee who was or is serving at its request as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, enterprise or nonprofit entity shall be reduced by any amount
such Indemnitee may collect as indemnification or advancement of expenses from
such other corporation, partnership, joint venture, trust, enterprise or
nonprofit enterprise.
Section 6.6. Amendment or
Repeal. Any repeal or modification of the foregoing provisions of
this Article VI shall not adversely affect any right or protection hereunder of
any Indemnitee in respect of any act or omission occurring prior to the time of
such repeal or modification.
Section 6.7. Other
Indemnification and Prepayment of Expenses. This Article VI shall not
limit the right of the Corporation, to the extent and in the manner permitted by
law, to indemnify and to advance expenses to persons other than Indemnitees when
and as authorized by appropriate corporate action.
ARTICLE
VII
MISCELLANEOUS
Section 7.1. Fiscal
Year. The fiscal year of the Corporation shall be determined by
resolution of the Board of Directors.
Section
7.2. Seal. The corporate seal shall have the name of the
Corporation inscribed thereon and shall be in such form as may be approved from
time to time by the Board of Directors.
Section 7.3. Waiver of
Notice of Meetings of Stockholders, Directors and Committees. Any
written waiver of notice, signed by the person entitled to notice or a waiver by
electronic transmission by such person, whether before or after the time stated
therein, shall be deemed equivalent to 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. Neither the business to be transacted at nor the
purpose of any regular or special meeting of the stockholders, directors, or
members of a committee of directors need be specified in any written waiver of
notice or any waiver by electronic transmission.
Section 7.4. Interested
Directors; Quorum. No contract or transaction between the Corporation
and one or more of its directors or officers, or between the Corporation and any
other corporation, partnership, association, or other organization in which one
or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the Board or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose, if: (1) the
material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the Board or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or (2)
the material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (3) the contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or ratified by the
Board of Directors, a committee thereof, or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee which authorizes the
contract or transaction.
Section 7.5. Form of
Records. Any records maintained by the Corporation in the regular
course of its business, including its stock ledger, books of account, and minute
books, may be kept on or by means of, or be in the form of any information
storage device or method, provided that the records so kept can be converted
into clearly legible form within a reasonable time. The Corporation shall so
convert any records so kept upon the request of any person entitled to inspect
such records pursuant to any provision of this chapter..
Section 7.6. Amendment of
Bylaws. These Bylaws may be altered or repealed, and new Bylaws made,
by the Board of Directors, but the stockholders may make additional Bylaws and
may alter and repeal any Bylaws whether adopted by them or
otherwise.
PRESIDENT'S
CERTIFICATE
OF
ADOPTION
BY-LAWS
OF
VITAMIN
BLUE, INC.
I, the
undersigned, do hereby certify:
1. That I
am the duly elected and acting President of Vitamin Blue, Inc., Inc a Delaware
corporation.
2. That
the foregoing By-laws constitute the By-laws of said Corporation as adopted by
the Directors of said Corporation at a duly called and held meeting of the Board
of Directors on April ,
2007.
IN
WITNESS WHEREOF, I have hereunto subscribed my name this ___ day of April,
2007.
___________________________________
Frank D.
Ornelas
President
o