Attached files
| file | filename |
|---|---|
| 10-Q/A - NANOVIRICIDES 10-Q A 12-31-2009 - NANOVIRICIDES, INC. | form10qa.htm |
| EX-4.1 - EXHIBIT 4.1 - NANOVIRICIDES, INC. | ex4_1.htm |
| EX-10.1 - EXHIBIT 10.1 - NANOVIRICIDES, INC. | ex10_1.htm |
| EX-31.1 - EXHIBIT 31.1 - NANOVIRICIDES, INC. | ex31_1.htm |
| EX-32.1 - EXHIBIT 32.1 - NANOVIRICIDES, INC. | ex32_1.htm |
Exhibit 3.1
AMENDED
AND RESTATED BY-LAWS
OF
NANOVIRICIDES,
INC.
A Nevada
corporation
(the
"Corporation")
ARTICLE
I
OFFICES
Offices. The
registered office of the Corporation is located in the city and state designed
by the Corporation in its Articles of Incorporation. The Corporation
may also maintain offices at such other places both within and without the State
of Nevada as the Board of Directors may from time to time determine or the
business of the Corporation may require.
ARTICLE
II
MEETINGS
OF STOCKHOLDERS
SECTION
1. Annual
Meetings. A meeting of the stockholders for the purpose of
electing directors and for the transaction of such other business as may
properly be brought before the meeting shall be held annually at 10 A.M. on
November 1, or at such other time on such other day as shall be fixed by
resolution of the Board of Directors. If the day fixed for the annual
meeting shall be a legal holiday, such meeting shall be held on the next
succeeding business day.
SECTION
2. Special Meetings.
Special meetings of the stockholders for any purpose or purposes may be called
at any time by a majority of the Board of Directors, by the Chairman of the
Board, or by the President and shall be called by the Secretary at the request
of the holders of not less than fifty-one percent of all issued and outstanding
shares of the Corporation entitled to vote at the meeting.
SECTION 3. Place of
Meetings. The annual meeting of the stockholders of the
Corporation shall be held at the general offices of the Corporation in the City
of West Haven, Connecticut, or at such other place in the United States as may
be stated in the notice of the meeting. All other meetings of the
stockholders shall be held at such places within or without the State of Nevada
as shall be stated in the notice of the meeting.
SECTION
4. Notice of
Meetings. Except as otherwise provided by law, written notice
of each meeting of the stockholders, whether annual or special, shall be given
not less than 10 nor more than 60 days before the date of the meeting to each
stockholder entitled to vote at such meeting. If mailed, notice shall
be given when deposited in the United States mails, postage prepaid, directed to
such stockholder at his address as it appears in the stock ledger of the
Corporation. Each such notice 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.
Page 1 of
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When a meeting is adjourned to another
time and place, notice of the adjourned meeting need not be given if the time
and place thereof are announced at the meeting at which the adjournment is
given. 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
5. Quorum. At
any meeting of the stockholders the holders of record of a majority of the total
number of outstanding shares of stock of the Corporation entitled to vote at the
meeting, present in person or represented by proxy, shall constitute a quorum
for all purposes, provided that at any meeting at which the holders of any
series of class of stock shall be entitled, voting as a class, to
elect Directors, the holders of record of a majority of the total
number of outstanding shares of such series or class, present in person or
represented by proxy, shall constitute a quorum for the purpose of such
election.
In the absence of a quorum at any
meeting, the holders of a majority of the shares of stock entitled to vote at
the meeting, present in person or represented by proxy at the meeting, may
adjourn the meeting, from time to time, until the holders of the number of
shares requisite to constitute a quorum shall be present in person or
represented at the meeting. At any adjourned meeting at which a
quorum is present, any business may be transacted that might have been
transacted at the meeting as originally convened.
SECTION
6. Organization. At
each meeting of the stockholders, the Chairman of the Board, or if he so
designates or is absent, the President, shall act as Chairman of the meeting. In
the absence of both the Chairman of the Board and the President, such person as
shall have been designated by the Board of Directors, or in the absence of such
designation a person elected by the holders of a majority in number of shares of
stock present in person or represented by proxy and entitled to vote at the
meeting, shall act as Chairman of the meeting.
The Secretary or, in his absence, an
Assistant Secretary or, in the absence of the Secretary and all of the Assistant
Secretaries, any person appointed by the Chairman of the meeting shall act as
Secretary of the meeting.
SECTION
7. Voting. Unless
otherwise provided in the Articles of Incorporation or a resolution of the Board
of Directors creating a series of stock, and designating the rights thereto, at
each meeting of the stockholders, each holder of shares of any series or class
of stock entitled to vote at such meeting shall be entitled to cast one vote for
each share of stock having voting power in respect of each matter upon which a
vote is to be taken, except for the casting of votes for directors which is set
forth in Section 8 herein, standing in his name on the stock ledger of the
Corporation on the record date fixed as provided in these Amended and Restated
By-Laws for determining the stockholders entitled to vote at such meeting or, if
no record date be fixed, at the close of business on the day next preceding the
day on which notice of the meeting is given. Shares of its own
capital stock belonging to the Corporation, or to another Corporation if a
majority of the shares entitled to vote in he election of directors of such
other Corporation is held by the Corporation, shall neither be entitled to vote
nor counted for quorum purposes.
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At all meetings of stockholders for the
election of Directors the voting shall be by ballot, and the persons having the
greatest number of votes shall be deemed and declared elected. All other
elections and questions submitted to a vote of the stockholders shall, unless
otherwise provided by law or the Articles of Incorporation, be decided by the
affirmative vote of the majority of shares which are present in person or
represented by proxy at the meeting and entitled to vote on the subject
matter.
SECTION
8. Cumulative Voting of
Directors. Except as otherwise provided by the Board of
Directors in establishing any class or series of stock with respect to such
class or series, each shareholder who is entitled to vote in the election of
Directors is entitled in any such election to multiply the number of votes that
the shareholder would be entitled to cast for the election of Directors
multiplied by the number of Directors to be elected, and to cast all of such
votes for a single candidate or distribute such votes among any two or more
candidates, as the shareholder sees fit.
SECTION
9. Inspectors. Prior
to each meeting of stockholders, the Board of Directors shall appoint two
Inspectors who are not directors, candidates for directors or officers of the
Corporation, who shall receive and determine the validity of proxies and the
qualifications of voters, and receive, inspect, count and report to the meeting
in writing the votes cast on all matters submitted to a vote at such meeting. In
case of failure of the Board of Directors to make such appointments or in case
of failure of any Inspector so appointed to act, the Chairman of the Board shall
make such appointment or fill such vacancies.
Each Inspector, immediately before
entering upon his duties, shall subscribe to an oath or affirmation faithfully
to execute the duties of Inspector at such meeting with strict impartiality and
according to the best of his ability.
SECTION
10. List of
Stockholders. The Secretary or other officer or agent having
charge of the stock ledger of the Corporation shall prepare and make, at least
ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at said meeting, arranged in alphabetical order
and showing the address of each stockholder and the number of shares of each
class and series registered in the name of each such
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, at the time and place of
the meeting during the whole time thereof and may be inspected by any
stockholder who is present.
SECTION
11. Business at Meetings of
Stockholders.
(a) General. The
business to be conducted at any meeting of stockholders of the Corporation shall
be limited to such business and nominations as shall comply with the procedures
set forth in this Article and Article XII of these Amended and Restated
By-laws.
Page 3 of
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(b) Notification of
Stockholder Business. At any special meeting of stockholders only
such business shall be conducted as shall have been brought before the meeting
pursuant to the Corporation’s notice of special meeting. At an annual meeting of
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting,
business must be either (i) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors,
including matters included pursuant to Rule 14a-8 of the Securities and Exchange
Commission, (ii) otherwise (a) properly requested to be brought before the
meeting by a stockholder of record entitled to vote in the elections of
directors generally, and (b) constitute a proper subject to be brought before
the meeting. In addition to any other applicable requirements, for business
(other than the election of directors) to be otherwise properly brought before
an annual meeting by a stockholder, the business must be a proper matter for
stockholder action and the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a stockholder's
notice must be addressed to and received at the principal executive offices of
the Corporation, not more than 150 days and not less than 120 days prior to the
first anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the meeting is more than 30 days before or
after such anniversary date, notice by the stockholder to be timely must be so
received not later than the close of business on the 15th day following the day
on which notice of the date of the annual meeting was mailed or public
disclosure was made, whichever first occurs. A stockholder's notice to the
Secretary shall set forth as to each matter (other than the election of
directors) the stockholder proposes to bring before the annual meeting (i) a
brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting, (ii)
the name and record address of the stockholder proposing such business and of
each beneficial owner on behalf of which the stockholder is acting, (iii) the
class and number of shares of the Corporation which are beneficially owned by
the stockholder and by any such beneficial owner, (iv) a representation that the
stockholder is a holder of record of capital stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to present such business, (v) any material interest of the stockholder
and of any such beneficial owner in such business; and (vi) whether the
proponent intends or is part of a group which intends to solicit proxies from
other stockholders in support of such proposal.
Notwithstanding
anything in these Amended and Restated By-Laws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the procedures
set forth in this Section 10 of Article II, provided, however, that nothing in
this Section 10 of Article II shall be deemed to preclude discussion by any
stockholder of any business properly brought before the annual
meeting.
The
Chairman of an annual or special meeting shall have the power and duty to
determine and shall, if the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting in accordance with the
provisions of this Section 10 of Article II, and if he should so determine, he
shall so declare to the meeting and any such business not properly brought
before the meeting shall not be transacted.
ARTICLE
III
BOARD
OF DIRECTORS
SECTION
1. Number, Qualification and
Term of Office. The business, property and affairs of the
Corporation shall be managed by a Board consisting of not less than two nor more
than seven Directors. The Board of Directors shall from time to time
by a vote of a majority of the Directors then in office fix within the maximum
and minimum limits the number of Directors to constitute the
Board. Directors shall be elected at the annual meeting of
stockholders, or at a special meeting called for that purpose as provided in
these Amended and Restated By-laws, by a plurality of the votes cast at such
election. In all elections of directors, each shareholder shall be
entitled to as many votes as shall equal the number of shares which such
shareholder owns. Each shareholder may cast all of such votes for a single
director or may distribute them among the number to be voted for, as such
shareholder may see fit. The entire number of directors to be elected
at an election shall be balloted for at one time and not separately.
Page 4 of
14
The terms
of the Directors shall be staggered in accordance with the following
provisions: subject to the special rights of the holders of any class
or series of stock to elect directors, at the next election of Directors, shall
be divided into three classes ; the Directors serving on the Board of Directors
as of the date these Amended and Restated By-Laws are adopted by the Corporation
shall be split equally among the classes The terms of office of
initial Class I directors expire at the 2012 annual meeting of shareholders; the
terms of office of the initial Class II expire at the 2013 annual meeting of
shareholders; and the terms of office of initial Class III directors expire at
the 2014 annual meeting of shareholders. At each annual meeting of shareholders
beginning with the 2013 annual meeting of shareholders following the filing of
the articles of incorporation, the successors of the class of directors whose
terms expire at that meeting shall be elected for a term of two years. Each
director in each such class shall hold office until the director’s successor is
duly elected and qualified.
SECTION
2. Vacancies. Vacancies
in the Board of Directors and newly created directorships resulting from any
increase in the authorized number of Directors may be filled by a majority of
the Directors of Executive Committee of the Board of Directors as set forth in
Article IV Section 1 of these Amended and Restated By-Laws.
SECTION
3. Resignations. Any
Director may resign at any time upon written notice to the Secretary of the
Corporation. Such resignation shall take effect on the date of
receipt of such notice or at any later date specified therein; and the
acceptance of such resignation, unless required by the terms thereof, shall not
be necessary to make it effective. When one or more Directors shall
resign effective at a future date, a majority of the Directors then in office,
including those who have resigned, shall have power to fill such vacancy or
vacancies to take effect when such resignation or resignations shall become
effective.
SECTION
4. Removals. Any
Director may be removed, with cause, at any special meeting of the Executive
Committee of the Board of Directors as set forth in Article IV Section 1 of the
Amended and Restate By-Laws, and the vacancy in the Board caused by any such
removal may be filled by the Members of the Committee at such a
meeting.
SECTION
5. Place of Meetings; Books and
Records. The Board of Directors may hold its meetings, and
have an office or offices, at such place or places within or without the State
of Nevada as the Board from time to time may determine.
The Board of Directors, subject to the
provisions of applicable law, may authorize the books and records of the
Corporation, and offices or agencies for the issue, transfer and registration of
the capital stock of the Corporation, to be kept at such place or places outside
of the State of Nevada as, from time to time, may be designated by the Board of
Directors.
Page 5 of
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SECTION
6. Annual Meeting of the
Board. The first meeting of each newly elected Board of
Directors, to be known as the Annual Meeting of the Board, for the purpose of
electing officers, designating committees and the transaction of such
other business as may come before the Board, shall be held as soon as
practicable after the adjournment of the annual meeting of stockholders, and no
notice of such meeting shall be necessary to the newly elected Directors in
order legally to constitute the meeting, provided a quorum shall be
present. In the event such meeting is not held due to the absence of
a quorum, the meeting may be held at such time and place as shall be specified
in a notice given as hereinafter provided for special meetings of the Board of
Directors or as shall be specified in a written waiver signed by all of the
newly elected Directors.
SECTION
7. Regular
Meetings. The Board of Directors shall, by resolution, provide
for regular meetings of the Board at such times and at such places as it deems
desirable. Notice of regular meetings need not be given.
SECTION
8. Special
Meetings. Special meetings of the Board of Directors may be
called by the Chairman of the Board or the President and shall be called by the
Secretary on the written request of at least two (2) Directors on such notice as
the person or persons calling the meeting shall deem appropriate in the
circumstances. Notice of each such special meeting shall be mailed to
each Director or delivered to him by telephone, telegraph or any other means of
electronic communication, in each case addressed to his residence or usual place
of business, or delivered to him in person or given to him
orally. The notice of meeting shall state the time and place of the
meeting but need not state the purpose thereof. Attendance of a
Director at any meeting shall constitute a waiver of notice of such meeting
except when a Director attends a meeting for the express purpose of objecting to
the transaction of any business because the meeting was not lawfully called or
convened. Except as provided by law, the Directors may waive notice of such
meeting and consent to the action taken as set forth in Section 12
hereof.
SECTION
9. Quorum and Manner of
Acting. Except as otherwise provided by statute, the Articles
of Incorporation or these Amended and Restated By-Laws, the presence of a
majority of the total number of Directors shall constitute a quorum for the
transaction of business at any regular or special meeting of the Board of
Directors, and the act of a majority of the Directors present at any such
meeting at which a quorum is present shall be the act of the Board of
Directors. In the absence of a quorum, a majority of the Directors
present may adjourn the meeting, from time to time, until a quorum is
present. Notice of any such adjourned meeting need not be
given.
SECTION 10. Chairman of the
Board. A Chairman of the Board shall be elected by the
Board of Directors from among its members for a prescribed term and may, or may
not be, at the discretion of the Board of Directors, an employee or an officer
of the Corporation. If the Chairman is neither an employee nor an
officer of the Corporation he may be designated "non-executive." The
Chairman of the Board shall perform such duties as shall be prescribed by the
Board of Directors and, when present, shall preside at all meetings
of the stockholders and the Board of Directors. In the absence or
disability of the Chairman of the Board, the Board of Directors shall designate
a member of the Board to serve as Chairman of the Board and such designated
Board Member shall have the powers and perform the duties of the office;
provided, however, that if the Chairman of the Board shall so designate or shall
be absent from a meeting of stockholders, the President shall preside at such
meeting of stockholders.
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SECTION 11. Organization. At
every meeting of the Board of Directors, the Chairman of the Board or, in his
absence the President or, if both of these individuals are absent, a Chairman
chosen by a majority of the Directors present shall act as Chairman of the
meeting. The Secretary or, in his absence, an Assistant Secretary or,
in the absence of the Secretary and all the Assistant Secretaries, any person
appointed by the Chairman of the meeting shall act as Secretary of the
meeting.
SECTION 12. Consent of Directors in Lieu
of Meeting. Unless otherwise restricted by the Articles of
Incorporation or by these Amended and Restated By-Laws, any action required or
permitted to be taken at any meeting of the Board of Directors, or any committee
designated by the Board, may be taken without a meeting if a majority of members
of the Board or committee consent thereto in writing, and such written consent
is filed with the minutes of the proceedings of the Board or
committee.
SECTION 13. Telephonic
Meetings. Members of the Board of Directors, or any committee
designated by the Board, may participate in a meeting of the 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 such a meeting shall constitute presence in person at such
meeting.
SECTION 14. Compensation. Each
Director who is not a full-time salaried officer of the Corporation or any of
its wholly owned subsidiaries, when authorized by resolution of the Board of
Directors may receive as a Director a stated salary or an annual retainer and in
addition may be allowed a fixed fee and his reasonable expenses for attendance
at each regular or special meeting of the Board or any Committee
thereof.
ARTICLE
IV
COMMITTEES
OF THE BOARD OF DIRECTORS
SECTION
1. Executive Committee.
The Board of Directors may, in its discretion, designate annually an Executive
Committee. The Committee shall consist of two (2) or more members who
shall serve at the pleasure of the Board of Directors. The Committee
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,
including, but not limited to, appointing and removing the Directors and
officers of the Corporation and evaluating and approving financing proposals and
securities offerings, and may authorize the seal of the Corporation to be
affixed to all papers which may require it, but the Committee shall have no
power or authority to amend the Articles of Incorporation, adopt an agreement of
merger or consolidation, recommend to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommend to the stockholders a dissolution of the Corporation or a revocation
of a dissolution, amend the Amended and Restated By-Laws of the Corporation,
declare a dividend, authorize the issuance of stock, or such other powers as the
Board may from time to time eliminate.
Page 7 of
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SECTION
2. Audit
Committee. The Board of Directors may, in its discretion,
designate annually an Audit Committee to assist the Board in fulfilling its
responsibilities with respect to overseeing the accounting, auditing and
financial reporting practices and the internal control policies and procedures
of the Corporation. If so designated, the Board shall adopt a charter
for the Audit Committee, and the Audit Committee shall review and assess the
adequacy of the charter on an annual basis. The duties of the Audit
Committee, which shall be set forth in its charter shall be to: (i) be directly
responsible for the appointment, compensation, retention and oversight of the
work of any registered public accounting firm engaged for the purpose of
preparing or issuing an audit report or performing other audit, review or attest
services for the issuer; (ii) establish procedures for the receipt, retention
and treatment of complaints regarding accounting, internal accounting controls
or auditing matters, including procedures for the confidential, anonymous
submission by employees of the issuer of concerns regarding questionable
accounting or auditing matters; and (iii) engage independent counsel and other
advisors, as it determines necessary to carry out its duties as set forth
herein.
All members of the Audit Committee
shall meet the requirements of the charter and any relevant regulatory body, as
interpreted by the Board in its reasonable business judgment. The
Corporation shall provide funding requested by the Audit Committee as it
reasonably relates to carry out its duties set forth herein. The
Board shall elect or appoint a chairman of the Audit Committee who will have
authority to act on behalf of the committee between meetings. The
Chairman may appoint a temporary Chairman in his or her absence.
SECTION
3. Code of Ethics
Committee. The Board of Directors may, in its discretion,
designate annually a Code of Ethics Committee to assist the Board in adopting a
Code of Ethics for its senior financial offices reasonably necessary to
promote:
(a) honest
and ethical conduct; including the ethical handling of actual or apparent
conflicts of interest between personal and professional
relationships;
(b) full,
fair, accurate, timely and understandable disclosure in the periodic reports
required to be filed by the Corporation; and
(c) compliance
with applicable governmental rules and regulations.
SECTION
4. Committee Chairman, Books
and Records. Unless designated by the Board of Director, each
Committee shall elect a Chairman to serve for such term as it may
determine. Each committee shall fix its own rules of procedure and
shall meet at such times and places and upon such call or notice as shall be
provided by such rules. It shall keep a record of its acts and
proceedings, and all action of the Committee shall be reported to the Board of
Directors at the next meeting of the Board.
Page 8 of
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SECTION
5. Alternates. Alternate
members of the Committees prescribed by this Article IV may be designated by the
Board of Directors from among the Directors to serve as occasion may
require. Whenever a quorum cannot be secured for any meeting of any
such Committees from among the regular members thereof and designated
alternates, the member or members of such Committee present at such meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board to act at the meeting in the
place of such absent or disqualified member.
Alternate members of such Committees
shall receive a reimbursement for expenses and compensation at the same rate as
regular members of such Committees.
SECTION
6. Other
Committees. The Board of Directors may designate such other
Committees, as it may from time to time determine, and each such
Committee shall serve for such term and shall have and may exercise, during
intervals between meetings of the Board of Directors, such duties, functions and
powers as the Board of Directors may from time to time prescribe.
SECTION
7. Quorum and Manner of
Acting. At each meeting of any Committee the presence of a
majority of the members of such Committee, whether regular or alternate, shall
be necessary to constitute a quorum for the transaction of business, and if a
quorum is present the concurrence of a majority of those present shall be
necessary for the taking of any action.
ARTICLE
V
OFFICERS
SECTION
1. Number. The
officers of the Corporation shall be a President, Secretary, and Treasurer, each
of which officers shall be elected by the Board of Directors, and such other
officers as the Board of Directors may determine, in its discretion, to
elect. Any number of offices may be held by the same
person. Any officer may hold such additional title descriptions or
qualifiers such as "Chief Executive Officer", "Chief Operating Officer", “Chief
Financial Officer”, "Senior Vice President", "Executive Vice President" or
"Assistant Secretary" or such other title as the Board of Directors shall
determine.
SECTION
2. Election, Term of Office and
Qualifications. The officers of the Corporation shall be
elected annually by the Board of Directors. Each officer elected by
the Board of Directors shall hold office until his successor shall have been
duly elected and qualified, or until he shall have died, resigned or been
removed in the manner hereinafter provided.
SECTION
3. Resignations. Any
officer may resign at any time upon written notice to the Secretary of the
Corporation. Such resignation shall take effect at the date of its
receipt, or at any later date specified therein; and the acceptance of such
resignation, unless required by the terms thereof, shall not be necessary to
make it effective.
SECTION
4. Removals. Any
officer elected or appointed by the Board of Directors may be removed, with or
without cause, by the Board of Directors at a regular meeting or special meeting
of the Board. Any officer or agent appointed by any officer or
committee may be removed, either with or without cause, by such appointing
officer or committee.
Page 9 of
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SECTION
5. Vacancies. Any
vacancy occurring in any office of the Corporation shall be filled for the
unexpired portion of the term in the same manner as prescribed in these Amended
and Restated By-Laws for regular election or appointment to such
office.
SECTION
6. Compensation of
Officers. The compensation of all officers elected by the
Board of Directors shall be approved or authorized by the Board of Directors or
by the President when so authorized by the Board of Directors or these Amended
and Restated By-Laws.
SECTION
7. Absence or Disability of
Officers. In the absence or disability of the Chairman of the
Board or the President, the Board of Directors may designate, by resolution,
individuals to perform the duties of those absent or disabled. The
Board of Directors may also delegate this power to a committee or to a senior
corporate officer.
ARTICLE
VI
STOCK
CERTIFICATES AND TRANSFER THEREOF
SECTION
1. Stock
Certificates. Except as otherwise permitted by law,
the Articles of Incorporation or resolution or resolutions of the Board of
Directors, every holder of stock in the Corporation shall be entitled to have a
certificate, signed by or in the name of the Corporation by the Chairman of the
Board, the President or a Vice President, and by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares, and the class and series thereof, owned by him
in the Corporation. Any and all of 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
2. Transfer of
Stock. Transfer of shares of the capital stock of the
Corporation shall be made only on the books of the Corporation by the holder
thereof, or by his attorney thereunto duty authorized, and on surrender of the
certificate or certificates for such shares. A person in whose name
shares of stock stand on the books of the Corporation shall be deemed the owner
thereof as regards the Corporation, and the Corporation shall not, except as
expressly required by statute, be bound to recognize any equitable or other
claim to, or interest in, such shares on the part of any other person whether or
not it shall have express or other notice thereof.
SECTION
3. Lost, Destroyed or Mutilated
Certificates. The Board of Directors may provide for the
issuance of new certificates of stock to replace certificates of stock lost,
stolen, mutilated or destroyed, or alleged to be lost, stolen, mutilated or
destroyed, upon such terms and in accordance with such procedures as the Board
of Directors shall deem proper and prescribe.
Page 10 of
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SECTION
4. Record
Date. 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 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. 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.
ARTICLE
VII
DIVIDENDS,
SURPLUS, ETC.
Except as otherwise provided by statute
or the Articles of Incorporation, the Board of Directors may declare dividends
upon the shares of its capital stock either (1) out of its surplus, or (2) in
case there shall be no surplus, out of its net profits for the fiscal year,
whenever, and in such amounts as, in its opinion, the condition of the affairs
of the Corporation shall render it advisable. Dividends may be paid
in cash, in property or in shares of the capital stock of the
Corporation.
ARTICLE
VIII
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. The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
ARTICLE
IX
FISCAL
YEAR
The fiscal year of the Corporation
shall begin on the first day of July of each year.
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ARTICLE
X
INDEMNIFICATION
SECTION
1. Right to
Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is involved (including, without
limitation, as a witness) in any actual or threatened action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that such person is or was a
director of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to
the full extent authorized by the Nevada Revised Statutes (“N.R.S.”), as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment), or by other applicable law as then in effect,
against all expense, liability and loss (including attorney's fees, judgments,
fines, ERISA excise taxes or penalties and amounts to be paid in settlement)
actually and reasonably incurred or suffered by such indemnitee in connection
therewith and such indemnification shall continue as to an indemnitee who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators, provided,
however, that except as provided in Section 2 of this Article with respect to
proceedings seeking to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee seeking indemnification in connection with a
proceeding (or part thereof) initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by the Board of Directors
of the Corporation. The right to indemnification conferred in this
Section shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition (hereinafter an "advancement of expenses"); provided,
however, that, if the Florida Business Organizations Code requires, an
advancement of expenses incurred by an indemnitee in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such indemnitee while a director or officer, including, without
limitation, service to an employee benefit plan) shall be made only
upon delivery to the Corporation of an undertaking, by or on behalf of such
indemnitee, to repay all amounts so advanced if it shall ultimately
be determined that such indemnitee is not entitled to be indemnified
under this Section 1, or otherwise.
SECTION
2. Right of Indemnitee to Bring
Suit. If a claim under Section 1 of this Article is not
paid in full by the Corporation within sixty days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be twenty days, the
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, to the extent successful in whole or
in part, the indemnitee shall be entitled to be paid also the expense of
prosecuting such suit. The indemnitee shall be presumed to be
entitled to indemnification under this Article upon submission of a written
claim (and, in an action brought to enforce a claim for an advancement of
expenses where the required undertaking, if any is required, has been tendered
to the Corporation), and thereafter the Corporation shall have the burden of
proof to overcome the presumption that the indemnitee is not so
entitled. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the
indemnitee is proper in the circumstances nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel or its
stockholders) that the indemnitee is not entitled to indemnification shall be a
defense to the suit or create a presumption that the indemnitee is not so
entitled.
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SECTION
3. Non-exclusivity of
Rights. The rights to indemnification and to the advancement of expenses
conferred in this Article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of the
Articles of Incorporation, Amended and Restated By-Laws, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION
4. Insurance, Contracts and
Funding. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another Corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the N.R.S. The Corporation may enter into
contracts with any indemnitee in furtherance of the provisions of this Article
and may create a trust fund, grant a security interest or use other means
(including, without limitation, a letter of credit) to ensure the payment of
such amounts as may be necessary to effect indemnification as provided in this
Article.
SECTION
5. Definition of Director and
Officer. Any person who is or was serving as a director of a
wholly owned subsidiary of the Corporation shall be deemed, for purposes of this
Article only, to be a director or officer of the Corporation entitled to
indemnification under this Article.
SECTION
6. Indemnification of Employees
and Agents of the Corporation. The Corporation may, by action
of its Board of Directors from time to time, grant rights to indemnification and
advancement of expenses to employees and agents of the Corporation with the same
scope and effects as the provisions of this Article with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
ARTICLE
XI
CHECKS,
DRAFTS, BANK ACCOUNTS, ETC.
SECTION
1. Checks, Drafts, Etc.;
Loans. All checks, drafts or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers, agent or agents of the
Corporation and in such manner as shall, from time to time, be determined by
resolution of the Board of Directors. No loans shall be contracted on
behalf of the Corporation unless authorized by the Board of
Directors. Such authority may be general or confined to specific
circumstances.
SECTION
2. Deposits. All
funds of the Corporation shall be deposited, from time to time, to the credit of
the Corporation in such banks, trust companies or other depositories as the
Board of Directors may select, or as may be selected by any officer or officers,
agent or agents of the Corporation to whom such power may, from time to time, be
delegated by the Board of Directors; and for the purpose of such deposit, the
Chairman, the President, any Vice President, the Treasurer or any Assistant
Treasurer, the Secretary or any Assistant Secretary or any other officer or
agent to whom such power may be delegated by the Board of
Directors, may endorse, assign and deliver checks, drafts and other
order for the payment of money which are payable to the order of the
Corporation.
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ARTICLE
XII
AMENDMENTS
These Amended and Restated By-Laws may
be altered or repealed and new Amended and Restated By-Laws may be made by the
affirmative vote, at any meeting of the Board, of a majority of the Board of
Directors.
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