Attached files
file | filename |
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S-1/A - RLJ Acquisition, Inc. | v207360_s1a.htm |
EX-14 - RLJ Acquisition, Inc. | v207360_ex14.htm |
EX-4.4 - RLJ Acquisition, Inc. | v207360_ex4-4.htm |
EX-3.1 - RLJ Acquisition, Inc. | v207360_ex3-1.htm |
EX-4.3 - RLJ Acquisition, Inc. | v207360_ex4-3.htm |
EX-5.1 - RLJ Acquisition, Inc. | v207360_ex5-1.htm |
EX-1.1 - RLJ Acquisition, Inc. | v207360_ex1-1.htm |
EX-4.2 - RLJ Acquisition, Inc. | v207360_ex4-2.htm |
EX-4.1 - RLJ Acquisition, Inc. | v207360_ex4-1.htm |
EX-10.7 - RLJ Acquisition, Inc. | v207360_ex10-7.htm |
EX-10.9 - RLJ Acquisition, Inc. | v207360_ex10-9.htm |
EX-10.6 - RLJ Acquisition, Inc. | v207360_ex10-6.htm |
EX-23.1 - RLJ Acquisition, Inc. | v207360_ex23-1.htm |
EX-10.8 - RLJ Acquisition, Inc. | v207360_ex10-8.htm |
EX-99.2 - RLJ Acquisition, Inc. | v207360_ex99-2.htm |
AMENDED
AND RESTATED
BYLAWS
OF
RLJ
ACQUISITION, INC.,
a
Nevada corporation
Effective
as of ___________, 2011
TABLE
OF CONTENTS
Page
|
||||
ARTICLE
I OFFICES
|
1
|
|||
Section
1.1
|
Principal
Office
|
1
|
|
|
Section
1.2
|
Other
Offices
|
1
|
||
ARTICLE
II STOCKHOLDERS
|
1
|
|||
Section
2.1
|
Annual
Meeting
|
1
|
||
Section
2.2
|
Special
Meetings
|
1
|
||
Section
2.3
|
Place
of Meetings
|
2
|
||
Section
2.4
|
Notice
of Meetings.
|
2
|
||
Section
2.5
|
Determination
of Stockholders of Record
|
4
|
||
Section
2.6
|
Quorum;
Adjourned Meetings
|
4
|
||
Section
2.7
|
Voting
|
5
|
||
Section
2.8
|
Proxies
|
6
|
||
Section
2.9
|
No
Action Without A Meeting
|
7
|
||
Section
2.10
|
Organization
|
7
|
||
Section
2.11
|
Advance
Notice of for Business
|
8
|
||
ARTICLE
III DIRECTORS
|
10
|
|||
Section
3.1
|
General
Powers; Performance of Duties
|
10
|
||
Section
3.2
|
Number,
Tenure, and Qualifications
|
10
|
||
Section
3.3
|
Advance
Notice for Nomination of Directors
|
11
|
||
Section
3.4
|
Chairman
of the Board
|
12
|
||
Section
3.5
|
Removal
and Resignation of Directors
|
12
|
||
Section
3.6
|
Vacancies;
Newly Created Directorships
|
13
|
||
Section
3.7
|
Annual
and Regular Meetings
|
13
|
||
Section
3.8
|
Special
Meetings
|
13
|
||
Section
3.9
|
Place
of Meetings
|
13
|
||
Section
3.10
|
Notice
of Meetings
|
14
|
||
Section
3.11
|
Quorum;
Adjourned Meetings
|
14
|
||
Section
3.12
|
Manner
of Acting; Presumption of Assent
|
14
|
||
Section
3.13
|
Telephonic
Meetings
|
14
|
||
Section
3.14
|
Action
Without Meeting
|
14
|
||
Section
3.15
|
Powers
and Duties
|
15
|
||
Section
3.16
|
Committees
|
16
|
||
Section
3.17
|
Compensation
|
16
|
||
Section
3.18
|
Organization
|
17
|
||
Section
3.19
|
Advisory
Panels
|
17
|
||
ARTICLE
IV OFFICERS
|
17
|
|||
Section
4.1
|
Election
|
17
|
||
Section
4.2
|
Removal;
Resignation
|
17
|
||
Section
4.3
|
Vacancies
|
17
|
— i
—
Section 4.4
|
Chief Executive Officer
|
17
|
||
Section 4.5
|
President
|
18
|
||
Section 4.6
|
Chief Financial Officer
|
18
|
||
Section 4.7
|
Vice Presidents
|
18
|
||
Section 4.8
|
Secretary
|
18
|
||
Section 4.9
|
Assistant Secretaries
|
18
|
||
Section 4.10
|
Treasurer
|
19
|
||
Section 4.11
|
Assistant Treasurers
|
19
|
||
Section 4.12
|
Execution of Negotiable Instruments, Deeds and
Contracts
|
19
|
||
ARTICLE
V CAPITAL STOCK
|
20
|
|||
Section 5.1
|
Issuance
|
20
|
||
Section 5.2
|
Stock Certificates and Uncertificated
Shares
|
20
|
||
Section 5.3
|
Surrendered; Lost or Destroyed
Certificates
|
21
|
||
Section 5.4
|
Replacement Certificate
|
21
|
||
Section 5.5
|
Transfer of Shares
|
21
|
||
Section 5.6
|
Transfer Agent; Registrars
|
22
|
||
Section 5.7
|
Miscellaneous
|
22
|
||
ARTICLE
VI DISTRIBUTIONS
|
22
|
|||
ARTICLE
VII RECORDS; REPORTS; SEAL; AND FINANCIAL MATTERS
|
23
|
|||
Section 7.1
|
Records.
|
23
|
||
Section 7.2
|
Corporate Seal
|
23
|
||
Section 7.3
|
Fiscal Year-End
|
23
|
||
ARTICLE
VIII INDEMNIFICATION
|
23
|
|||
Section 8.1
|
Indemnification and
Insurance
|
23
|
||
Section 8.2
|
Amendment
|
25
|
||
ARTICLE
IX CHANGES IN NEVADA LAW
|
26
|
|||
ARTICLE
X AMENDMENT OR REPEAL
|
26
|
|||
Section 10.1
|
Amendment of Bylaws
|
26
|
||
CERTIFICATE
OF SECRETARY
|
27
|
— ii
—
AMENDED
AND RESTATED
BYLAWS
of
RLJ
ACQUISITION, INC.,
a
Nevada corporation
ARTICLE
I
OFFICES
Section
1.1
|
Principal
Office
|
The
principal office and place of business of RLJ Acquisition, Inc. (the "Corporation")
shall be at 3 Bethesda Metro Center, Suite 1000, Bethesda, Maryland,
20814, or at such other location within or without the State of
Nevada as may be determined from time to time by resolution of the board of
directors of the Corporation (the "Board").
Section
1.2
|
Other
Offices
|
Other
offices and places of business either within or without the State of Nevada may
be established from time to time by resolution of the Board or as the business
of the Corporation may require. The Corporation's resident agent and
the street address of the Corporation's resident agent in Nevada shall be as
determined by the Board from time to time.
ARTICLE
II
STOCKHOLDERS
Section
2.1
|
Annual
Meeting
|
The
annual meeting of the stockholders of the Corporation shall be held on such date
and at such time as may be designated from time to time by the Board and stated
in the notice of meeting. At each annual meeting, the stockholders
shall elect those directors of the Corporation to fill any term of a
directorship that expires on the date of such annual meeting and may transact
any other business as may properly be brought before the meeting. Prior to the
Corporation’s consummation of an initial public offering (“Offering”),
stockholders may, unless the Corporation’s Amended and Restated Articles of
Incorporation, dated as of ___, 2010, as the same may be amended or restated
from time to time (the “Articles of
Incorporation”) otherwise provides, act by written consent to elect
directors.
Section
2.2
|
Special
Meetings
|
(a) Subject
to the rights of the holders of any outstanding series of the preferred stock,
and to the requirements of applicable law, special meetings of stockholders, for
any purpose or purposes, may be called only by the Chairman of the Board, Chief
Executive Officer, or the Board pursuant to a resolution adopted by a majority
of the Whole Board (as defined below). Special meetings of stockholders shall be
held at such place and time and on such date as shall be determined by the Board
and stated in the Corporation’s notice of the meeting. “Whole
Board” shall mean the total number of directors the Corporation would
have if there were no vacancies.
(b) No
business shall be acted upon at a special meeting of stockholders except as set
forth in the notice of the meeting or matters incident to the conduct of the
meeting as the presiding officer of the meeting shall determine to be
appropriate.
Section
2.3
|
Place
of Meetings
|
If the
place of any meeting of stockholders, the Board or its committee for which
notice is required under these Bylaws is not designated in the notice of such
meeting, such meeting shall be held at the principal business office of the
Corporation.
Section
2.4
|
Notice
of Meetings; Waiver of Notice
|
(a)
Notice of each stockholders meeting stating the place, if any,
date, and time of the meeting, and the means of remote communication, if any, by
which stockholders and proxy holders may be deemed to be present in person and
vote at such meeting, shall be given in the manner permitted by this Section 2.4 to
each stockholder entitled to vote thereat by the Corporation not less than 10
nor more than 60 days before the date of the meeting. If said notice is for
a stockholders meeting other than an annual meeting, it shall in addition state
the purpose or purposes for which the meeting is called, and the business
transacted at such meeting shall be limited to the matters so stated in the
Corporation’s notice of meeting (or any supplement thereto). Any meeting of
stockholders as to which notice has been given may be postponed, and any special
meeting of stockholders as to which notice has been given may be cancelled, by
the Board upon public announcement (as defined in Section 2.11(c))
given before the date previously scheduled for such meeting. The
notice shall contain or be accompanied by such additional information as may be
required by Nevada Revised Statutes ("NRS"),
including, without limitation, NRS 78.379, 92A.120 or 92A.410.
(b)
Whenever under applicable law, the Articles of Incorporation or
these Bylaws notice is required to be given to any stockholder, such notice may
be given (i) in writing and sent either by hand delivery, through the
United States mail, or by a nationally recognized overnight delivery service for
next day delivery, or (ii) by means of a form of electronic transmission
consented to by the stockholder, to the extent permitted by, and subject to the
conditions set forth in Section 78.370 of the NRS. A notice to a
stockholder shall be deemed given as follows: (i) if given by hand
delivery, when actually received by the stockholder, (ii) if sent through the
United States mail, when deposited in the United States mail, with postage and
fees thereon prepaid, addressed to the stockholder at the stockholder’s address
appearing on the stock ledger of the Corporation, (iii) if sent for next
day delivery by a nationally recognized overnight delivery service, when
deposited with such service, with fees thereon prepaid, addressed to the
stockholder at the stockholder’s address appearing on the stock ledger of the
Corporation, and (iv) if given by a form of electronic transmission
consented to by the stockholder to whom the notice is given and otherwise
meeting the requirements set forth above, (A) if by facsimile transmission,
when directed to a number at which the stockholder has consented to receive
notice, (B) if by electronic mail, when directed to an electronic mail
address at which the stockholder has consented to receive notice, (C) if by
a posting on an electronic network together with separate notice to the
stockholder of such specified posting, upon the later of (1) such posting
and (2) the giving of such separate notice, and (D) if by any other
form of electronic transmission, when directed to the stockholder. A stockholder
may revoke such stockholder’s consent to receiving notice by means of electronic
communication by giving written notice of such revocation to the Corporation.
Any such consent shall be deemed revoked if (1) the Corporation is unable
to deliver by electronic transmission two consecutive notices given by the
Corporation in accordance with such consent and (2) such inability becomes
known to the Secretary or an Assistant Secretary or to the Corporation’s
transfer agent, or other person responsible for the giving of notice; provided,
however, the inadvertent failure to treat such inability as a revocation shall
not invalidate any meeting or other action. “Electronic
transmission” means any form of communication, not directly involving the
physical transmission of paper, that creates a record that may be retained,
retrieved and reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated process,
including but not limited to transmission by telex, facsimile telecommunication,
electronic mail, telegram and cablegram.
— 2
—
(d) Without
limiting the manner by which notice otherwise may be given effectively by the
Corporation to stockholders, any notice to stockholders given by the Corporation
under any provision of the NRS, the Articles of Incorporation or these Bylaws
shall be effective if given by a single written notice to stockholders who share
an address if consented to by the stockholders at that address to whom such
notice is given. A stockholder may revoke such stockholder’s consent by
delivering written notice of such revocation to the Corporation. Any stockholder
who fails to object in writing to the Corporation within 60 days of having
been given written notice by the Corporation of its intention to send such a
single written notice shall be deemed to have consented to receiving such single
written notice.
(e) Whenever
notice is required to be given by the Corporation, under any provision of the
NRS, the Articles of Incorporation or these Bylaws, to any stockholder to whom
(1) notice of two consecutive annual meetings, and all notices of meetings or of
the taking of action by written consent without a meeting to the stockholder
during the period between those two consecutive annual meetings; or (2) all, and
at least two, payments sent by first-class mail of dividends or interest on
securities during a 12-month period, have been mailed addressed to the
stockholder at such stockholder’s address as shown on the records of the
Corporation and have been returned undeliverable, the giving of further notices
to the stockholder is not required. Any action or meeting taken or held without
notice to such a stockholder has the same effect as if the notice had been
given. If any such stockholder delivers to the Corporation a written
notice setting forth the stockholder’s current address, the requirement that
notice be given to the stockholder is reinstated. If the action taken
by the Corporation is such as to require the filing of a certificate with the
Secretary of the State of Nevada, the certificate need not state that notice was
not given to persons to whom notice was not required to be given pursuant to
this Section
2.4(e). The giving of further notices to a stockholder is
still required for any notice returned as undeliverable if the notice was given
by electronic transmission.
— 3
—
(f)
Whenever any notice is required to be given
under the NRS, the Articles of Incorporation or these Bylaws, a
written waiver of such notice, signed before or after the date of such meeting
by the person or persons entitled to said notice, or a waiver by electronic
transmission by the person entitled to said notice, shall be deemed equivalent
to such required notice. All such waivers shall be kept with the books of the
Corporation. Attendance at a meeting shall constitute a waiver of notice of such
meeting, except where a person attends for the express purpose of objecting to
the transaction of any business on the ground that the meeting was not lawfully
called or convened.
Section
2.5
|
Determination
of Stockholders of Record
|
(a)
For the purpose of determining the stockholders entitled
to notice of and to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any distribution or the 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 directors may fix, in advance, a record date, which shall not be more than
sixty (60) days nor less than ten (10) days before the date of such
meeting, if applicable.
(b)
If no record date is fixed, the record date for
determining stockholders: (i) entitled to notice of and to vote
at a meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held; and (ii) for any other purpose shall be at the close of business on
the day on which the Board adopts the resolution relating thereto. A
determination of stockholders of record entitled to notice of or to vote at any
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board may fix a new record date for the adjourned meeting and
must fix a new record date if the meeting is adjourned to a date more than
60 days later than the date set for the original meeting.
Section
2.6
|
Quorum;
Adjourned Meetings
|
(a)
Unless the Articles of Incorporation provide for a different
proportion, stockholders holding at least a majority of the voting power of the
Corporation's capital stock, represented in person or by proxy (regardless of
whether the proxy has authority to vote on all matters), are necessary to
constitute a quorum for the transaction of business at any
meeting. If, on any issue, voting by classes or series is required by
the laws of the State of Nevada, the Articles of Incorporation or these Bylaws,
at least a majority of the voting power, represented in person or by proxy
(regardless of whether the proxy has authority to vote on all matters), within
each such class or series is necessary to constitute a quorum of each such class
or series.
(b)
If a quorum is not represented, the person presiding at
the meeting may adjourn the meeting from time to time until a quorum shall be
represented. At any such adjourned meeting at which a quorum shall be
represented, any business may be transacted which might have been transacted as
originally called. When a stockholders' meeting is adjourned to
another time or place hereunder, notice need not be given of the adjourned
meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken. However, if a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting must be given to each
stockholder of record as of the new record date. The stockholders
present at a duly convened meeting at which a quorum is present may continue to
transact business until adjournment, notwithstanding the departure of enough
stockholders to leave less than a quorum of the voting power.
— 4
—
Section
2.7
|
Voting
|
(a) Unless
otherwise provided in the NRS, in the Articles of Incorporation, or in the
resolution providing for the issuance of preferred stock adopted by the Board
pursuant to authority expressly vested in it by the provisions of the Articles
of Incorporation (if any such authority is so vested), each stockholder of
record, or such stockholder's duly authorized proxy, shall be entitled to one
(1) vote for each share of voting stock standing registered in such
stockholder's name at the close of business on the record date.
Except as
otherwise provided herein, all votes with respect to shares standing in the name
of an individual at the close of business on the record date (including pledged
shares) shall be cast only by that individual or such individual's duly
authorized proxy. With respect to shares held by a representative of
the estate of a deceased stockholder, or a guardian, conservator, custodian or
trustee, even though the shares do not stand in the name of such holder, votes
may be cast by such holder upon proof of such representative
capacity. In the case of shares under the control of a receiver, the
receiver may cast votes carried by such shares even though the shares do not
stand of record in the name of the receiver; provided, that the order of a court
of competent jurisdiction which appoints the receiver contains the authority to
cast votes carried by such shares. If shares stand of record in the
name of a minor, votes may be cast by the duly appointed guardian of the estate
of such minor only if such guardian has provided the Corporation with written
proof of such appointment.
With
respect to shares standing of record in the name of another corporation,
partnership, limited liability company or other legal entity on the record date,
votes may be cast: (i) in the case of a corporation, by such
individual as the bylaws of such other corporation prescribe, by such individual
as may be appointed by resolution of the Board of such other corporation or by
such individual (including, without limitation, the officer making the
authorization) authorized in writing to do so by the chairman of the board, if
any, President, Chief Executive Officer, if any, or any Vice President of such
corporation, upon presentation to the Corporation of satisfactory evidence of
his or her authority to do so; and (ii) in the case of a partnership,
limited liability company or other legal entity, by an individual representing
such stockholder, upon presentation to the Corporation of satisfactory evidence
of his or her authority to do so.
Notwithstanding
anything to the contrary contained herein and except for the Corporation's
shares held in a fiduciary capacity, the Corporation shall not vote, directly or
indirectly, shares of its own stock owned by it; and such shares shall not be
counted in determining the total number of outstanding shares entitled to
vote.
If any
holder votes any of such stockholder's shares affirmatively and fails to specify
the number of affirmative votes, it will be conclusively presumed that the
holder is casting affirmative votes with respect to all shares
held.
— 5
—
With
respect to shares standing of record in the name of two or more persons, whether
fiduciaries, members of a partnership, joint tenants, tenants in common, husband
and wife as community property, tenants by the entirety, voting trustees or
otherwise and shares held by two or more persons (including proxy holders)
having the same fiduciary relationship in respect to the same shares, (unless
the Secretary is given timely written notice to the contrary accompanied by a
copy of the governing instrument or order) votes may be cast in the following
manner:
If only
one person votes, the vote of such person binds all.
If more
than one person casts votes, the act of the majority so voting binds
all.
If more
than one person casts votes, but the vote is evenly split on a particular
matter, the votes shall be deemed cast proportionately, as split.
(b) Subject
to the rights of the holders of one or more series of preferred stock of the
Corporation, voting separately by class or series, to elect directors pursuant
to the terms of one or more series of preferred stock, the election of directors
shall be determined by a plurality of the votes cast by the stockholders present
in person or represented by proxy at the meeting and entitled to vote thereon.
All other matters shall be determined by the vote of a majority of the votes
cast by the stockholders present in person or represented by proxy at the
meeting and entitled to vote thereon, unless the matter is one upon which, by
applicable law, the Articles of Incorporation, these Bylaws, the NRS or
applicable stock exchange rules, a different vote is required, in which case
such provision shall govern and control the decision of such
matter.
(c) In
determining the right to vote shares of the Corporation pursuant to this Section 2.7 or
otherwise, the Corporation may rely on any instruments or statements presented
to it, provided that the Corporation has the right, but not the obligation, to
require and review such proof of ownership and voting rights as it determines in
good faith. The Corporation is entitled to reject a vote, consent,
waiver, or proxy appointment if the Secretary or other officer or agent
authorized to tabulate votes, acting in good faith, has reasonable basis for
doubt about the validity of the signature on it or about the signatory's
authority to sign for the stockholder. All decisions of the
Corporation shall be valid and binding unless and until a court of competent
jurisdiction determines otherwise.
Section
2.8
|
Proxies
|
Each
stockholder entitled to vote at a meeting of stockholders or to express consent
or dissent to corporate action in writing without a meeting may authorize
another person or persons to act for such stockholder by proxy, but no such
proxy shall be voted or acted upon after six months from its date, unless the
proxy provides for a longer period which shall not exceed 7 years. Proxies need
not be filed with the Secretary of the Corporation until the meeting is called
to order, but shall be filed with the Secretary before being voted. Without
limiting the manner in which a stockholder may authorize another person or
persons to act for such stockholder as proxy, either of the following shall
constitute a valid means by which a stockholder may grant such
authority.
(a) A
stockholder may execute a writing authorizing another person or persons to act
for such stockholder as proxy. Execution may be accomplished by the stockholder
or such stockholder’s authorized officer, director, employee or agent signing
such writing or causing such person’s signature to be affixed to such writing by
any reasonable means, including, but not limited to, by facsimile
signature.
— 6
—
(b) A
stockholder may authorize another person or persons to act for such stockholder
as proxy by transmitting or authorizing the transmission of an electronic
transmission to the person who will be the holder of the proxy or to a proxy
solicitation firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy to receive such
transmission, provided that any such electronic transmission must either set
forth or be submitted with information from which it can be determined that the
electronic transmission was authorized by the stockholder.
Any copy,
facsimile telecommunication or other reliable reproduction of the writing or
transmission authorizing another person or persons to act as proxy for a
stockholder may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used; provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
Section
2.9
|
No
Action Without A Meeting
|
Unless
otherwise provided by the Articles of Incorporation, and subject to the
provision in Section 2.1
until the corporation consummates an Offering, any action required to be taken
at any annual or special meeting of stockholders, or any action which may be
taken at any annual or special meeting of such 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, and shall be delivered to the
Corporation by delivery to its registered office in the State of Nevada, its
principal place of business, or an 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.
Section
2.10
|
Organization
|
(a) Meetings
of stockholders shall be presided over by the Chairman of the Board, or, in the
absence of the Chairman, by the Chief Executive Officer, or in the absence of
the Chief Executive Officer, the President, or, in the absence of the foregoing
persons, by a chairman designated by the Board, or, in the absence of such
designation by the Board, by a chairman chosen at the meeting by the
stockholders entitled to cast a majority of the votes which all stockholders
present in person or by proxy are entitled to cast. The Secretary, or
in the absence of the Secretary an Assistant Secretary, shall act as Secretary
of the meeting, but in the absence of the Secretary and any Assistant Secretary,
the chairman of the meeting may appoint any person to act as Secretary of the
meeting. The order of business at each such meeting shall be as
determined by the chairman of the meeting. The chairman of the
meeting shall have the right and authority to prescribe such rules, regulations
and procedures and to do all such acts and things as are necessary or desirable
for the proper conduct of the meeting, including, without limitation, the
establishment of procedures for the maintenance of order and safety, limitation
on the time allotted to questions or comments on the affairs of the Corporation,
restrictions on entry to such meeting after the time prescribed for the
commencement thereof and the opening and closing of the voting
polls.
— 7
—
(b) The
Board of Director may, and shall if required by law, in advance of any meeting
of stockholders, appoint one or more persons as inspectors of election, who may
be employees of the Corporation or otherwise serve the Corporation in other
capacities, to act at such meeting of stockholders or any adjournment thereof
and to make a written report thereof. The Board may appoint one or more persons
as alternate inspectors to replace any inspector who fails to act. If no
inspectors of election or alternates are appointed by the Board, the chairman of
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before discharging his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspectors shall ascertain and
report the number of outstanding shares and the voting power of each; determine
the number of shares present in person or represented by proxy at the meeting
and the validity of proxies and ballots; count all votes and ballots and report
the results; determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors; and
certify their determination of the number of shares represented at the meeting
and their count of all votes and ballots. No person who is a candidate for an
office at an election may serve as an inspector at such election. Each report of
an inspector shall be in writing and signed by the inspector or by a majority of
them if there is more than one inspector acting at such meeting. If there is
more than one inspector, the report of a majority shall be the report of the
inspectors.
Section
2.11
|
Advance
Notice of Business
|
(a) No
business may be transacted at an annual meeting of stockholders, other than
business that is either (i) specified in the Corporation’s notice of
meeting (or any supplement thereto) given by or at the direction of the Board,
(ii) otherwise properly brought before the annual meeting by or at the direction
of the Board or (iii) otherwise properly brought before the annual meeting by
any stockholder of the Corporation (x) who is a stockholder of record on
the date of the giving of the notice provided for in this Section 2.11(a) and
on the record date for the determination of stockholders entitled to vote at
such annual meeting and (y) who complies with the notice procedures set
forth in this Section
2.11(a). Notwithstanding anything in this Section 2.11(a)
to the contrary, only persons nominated for election as a director to fill any
term of a directorship that expires on the date of the annual meeting pursuant
to Section 3.3 will
be considered for election at such meeting.
— 8
—
(i) In
addition to any other applicable requirements, for business (other than
nominations) to be properly brought before an annual meeting by a stockholder,
such stockholder must have given timely notice thereof in proper written form to
the Secretary of the Corporation and such business must otherwise be a proper
matter for stockholder action. Subject to Section 2.11(a)(iii),
a stockholder’s notice to the Secretary with respect to such business, to be
timely, must be received by the Secretary at the principal executive offices of
the Corporation not later than the close of business on the 90th day nor earlier
than the opening of business on the 120th day before the anniversary date of the
immediately preceding annual meeting of stockholders; provided, however, that in
the event that the annual meeting is called for a date that is not within
45 days before or after such anniversary date, notice by the stockholder to
be timely must be so received not earlier than the opening of business on the
120th day before the meeting and not later than the later of (x) the close
of business on the 90th day before the meeting or (y) the close of business
on the 10th day following the day on which public announcement of the date of
the annual meeting is first made by the Corporation. Notwithstanding the
previous sentence, for purposes of determining whether a stockholder’s notice
shall have been received in a timely manner for the annual meeting of
stockholders in 2011, to be timely, a stockholder’s notice must have been
received not later than the close of business on ___________, 2011 nor earlier
than the opening of business on ___________, 2011. The public announcement of an
adjournment of an annual meeting shall not commence a new time period for the
giving of a stockholder’s notice as described in this Section 2.11(a).
(ii) To
be in proper written form, a stockholder’s notice to the Secretary with respect
to any business (other than nominations) must set forth as to each such matter
such stockholder proposes to bring before the annual meeting (A) a brief
description of the business desired to be brought before the annual meeting, the
text of the proposal or business (including the text of any resolutions proposed
for consideration and in the event such business includes a proposal to amend
these Bylaws, the language of the proposed amendment) and the reasons for
conducting such business at the annual meeting, (B) the name and record
address of such stockholder and the name and address of the beneficial owner, if
any, on whose behalf the proposal is made, (C) the class or series and
number of shares of capital stock of the Corporation that are owned beneficially
and of record by such stockholder and by the beneficial owner, if any, on whose
behalf the proposal is made, (D) a description of all arrangements or
understandings between such stockholder and the beneficial owner, if any, on
whose behalf the proposal is made and any other person or persons (including
their names) in connection with the proposal of such business by such
stockholder, (E) any material interest of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made in such business
and (F) a representation that such stockholder intends to appear in person
or by proxy at the annual meeting to bring such business before the
meeting.
(iii) The
foregoing notice requirements of this Section 2.11(a)
shall be deemed satisfied by a stockholder as to any proposal (other than
nominations) if the stockholder has notified the Corporation of such
stockholder’s intention to present such proposal at an annual meeting in
compliance with Rule 14a-8 (or any successor thereof) of the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”), and such stockholder has complied with the requirements of such
Rule for inclusion of such proposal in a proxy statement prepared by the
Corporation to solicit proxies for such annual meeting. No business shall be
conducted at the annual meeting of stockholders except business brought before
the annual meeting in accordance with the procedures set forth in this Section 2.11(a),
provided, however, that once business has been properly brought before the
annual meeting in accordance with such procedures, nothing in this Section 2.11(a)
shall be deemed to preclude discussion by any stockholder of any such business.
If the Board or the chairman of the annual meeting determines that any
stockholder proposal was not made in accordance with the provisions of this
Section 2.11(a)
or that the information provided in a stockholder’s notice does not satisfy the
information requirements of this Section 2.11(a), such
proposal shall not be presented for action at the annual meeting.
Notwithstanding the foregoing provisions of this Section 2.11(a),
if the stockholder (or a qualified representative of the stockholder) does not
appear at the annual meeting of stockholders of the Corporation to present the
proposed business, such proposed business shall not be transacted,
notwithstanding that proxies in respect of such matter may have been received by
the Corporation.
— 9
—
(iv)
In addition to the provisions of this Section 2.11(a),
a stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth herein. Nothing in this Section 2.11(a)
shall be deemed to affect any rights of stockholders to request inclusion of
proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under
the Exchange Act.
(b) 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. Nominations of persons for election to the Board may be made at a
special meeting of stockholders at which directors are to be elected pursuant to
the Corporation’s notice of meeting only pursuant to Section 3.3.
(c) For
purposes of these Bylaws, “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 Sections 13, 14 or 15(d) of the Exchange
Act.
ARTICLE
III
DIRECTORS
Section
3.1
|
General
Powers; Performance of Duties
|
The
business and affairs of the Corporation shall be managed by or under the
direction of the Board, except as otherwise provided in Chapter 78 of the
NRS or the Articles of Incorporation.
Section
3.2
|
Number,
Tenure, and Qualifications
|
The Board
of the Corporation shall consist of at least one (1) individual(s) and not
more than nine (9) individuals. The number of directors within
the foregoing fixed minimum and maximum may be established and changed from time
to time by resolution adopted by the Board of the Corporation without amendment
to these Bylaws or the Articles of Incorporation. Each director shall
hold office until his or her successor shall be elected or appointed and
qualified or until his or her earlier death, retirement, disqualification,
resignation or removal. No reduction of the number of directors shall
have the effect of removing any director prior to the expiration of his or her
term of office. No provision of this Section shall be restrictive
upon the right of the Board to fill vacancies or upon the right of the
stockholders to remove directors as is hereinafter provided.
— 10
—
Section
3.3
|
Advance
Notice for Nomination of
Directors
|
(a) Only
persons who are nominated in accordance with the following procedures shall be
eligible for election as directors of the Corporation, except as may be
otherwise provided by the terms of one or more series of preferred stock with
respect to the rights of holders of one or more series of preferred stock to
elect directors. Nominations of persons for election to the Board at any annual
meeting of stockholders, or at any special meeting of stockholders called for
the purpose of electing directors as set forth in the Corporation’s notice of
such special meeting, may be made (i) by or at the direction of the Board
or (ii) by any stockholder of the Corporation (x) who is a stockholder
of record on the date of the giving of the notice provided for in this Section 3.3 and
on the record date for the determination of stockholders entitled to vote at
such meeting and (y) who complies with the notice procedures set forth in
this Section 3.3.
(b) In
addition to any other applicable requirements, for a nomination to be made by a
stockholder, such stockholder must have given timely notice thereof in proper
written form to the Secretary of the Corporation. To be timely, a stockholder’s
notice to the Secretary must be received by the Secretary at the principal
executive offices of the Corporation (i) in the case of an annual meeting,
not later than the close of business on the 90th day nor earlier than the
opening of business on the 120th day before the anniversary date of the
immediately preceding annual meeting of stockholders; provided, however, that in
the event that the annual meeting is called for a date that is not within
45 days before or after such anniversary date, notice by the stockholder to
be timely must be so received not earlier than the opening of business on the
120th day before the meeting and not later than the later of (x) the close
of business on the 90th day before the meeting or (y) the close of business
on the 10th day following the day on which public announcement of the date of
the annual meeting was first made by the Corporation; and (ii) in the case
of a special meeting of stockholders called for the purpose of electing
directors, not later than the close of business on the 10th day following the
day on which public announcement of the date of the special meeting is first
made by the Corporation. In no event shall the public announcement of an
adjournment of an annual meeting or special meeting commence a new time period
for the giving of a stockholder’s notice as described in this Section 3.3.
(c) Notwithstanding
anything in paragraph (b) to the contrary, in the event that the number of
directors to be elected to the Board at an annual meeting is greater than the
number of directors whose terms expire on the date of the annual meeting and
there is no public announcement by the Corporation naming all of the nominees
for the additional directors to be elected or specifying the size of the
increased Board before the close of business on the 90th day prior to the
anniversary date of the immediately preceding annual meeting of stockholders, a
stockholder’s notice required by this Section 3.3
shall also be considered timely, but only with respect to nominees for the
additional directorships created by such increase that are to be filled by
election at such annual meeting, if it shall be received by the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 10th day following the date on which such public announcement
was first made by the Corporation.
— 11
—
(d) To
be in proper written form, a stockholder’s notice to the Secretary must set
forth (i) as to each person whom the stockholder proposes to nominate for
election as a director (A) the name, age, business address and residence
address of the person, (B) the principal occupation or employment of the
person, (C) the class or series and number of shares of capital stock of
the Corporation that are owned beneficially or of record by the person and
(D) any other information relating to the person that would be required to
be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder; and (ii) as to the stockholder giving the notice (A) the
name and record address of such stockholder and the name and address of the
beneficial owner, if any, on whose behalf the nomination is made, (B) the
class or series and number of shares of capital stock of the Corporation that
are owned beneficially and of record by such stockholder and the beneficial
owner, if any, on whose behalf the nomination is made, (C) a description of
all arrangements or understandings relating to the nomination to be made by such
stockholder among such stockholder, the beneficial owner, if any, on whose
behalf the nomination is made, each proposed nominee and any other person or
persons (including their names), (D) a representation that such stockholder
intends to appear in person or by proxy at the meeting to nominate the persons
named in its notice and (E) any other information relating to such stockholder
and the beneficial owner, if any, on whose behalf the nomination is made that
would be required to be disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written consent of
each proposed nominee to being named as a nominee and to serve as a director if
elected.
(e) If
the Board or the chairman of the meeting of stockholders determines that any
nomination was not made in accordance with the provisions of this Section 3.3,
then such nomination shall not be considered at the meeting in question.
Notwithstanding the foregoing provisions of this Section 3.3, if
the stockholder (or a qualified representative of the stockholder) does not
appear at the meeting of stockholders of the Corporation to present the
nomination, such nomination shall be disregarded, notwithstanding that proxies
in respect of such nomination may have been received by the
Corporation.
(f) In
addition to the provisions of this Section 3.3, a
stockholder shall also comply with all of the applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth herein. Nothing in this Section 3.3
shall be deemed to affect any rights of the holders of preferred stock to elect
directors pursuant to the Articles of Incorporation.
Section
3.4
|
Chairman
of the Board
|
The Board
shall elect a chairman of the board from the members of the Board who shall
preside at all meetings of the Board and stockholders at which he or she shall
be present and shall have and may exercise such powers as may, from time to
time, be assigned to him or her by the Board, these Bylaws or as may be provided
by law.
Section
3.5
|
Annual
and Regular Meetings
|
Immediately
following the adjournment of, and at the same place as, the annual or any
special meeting of the stockholders at which directors are elected, the Board,
including directors newly elected, shall hold its annual meeting without call or
notice, other than this provision, to elect officers and to transact such
further business as may be necessary or appropriate. The Board may
provide by resolution the place, date, and hour for holding regular meetings
between annual meetings.
— 12
—
Section
3.6
|
Special
Meetings
|
Special
meetings of the Board may be called by the Chairman of the Board, if one shall
have been elected, or by two or more directors of the Corporation or by the
Chief Executive Officer.
Section
3.7
|
Place
of Meetings
|
Any
regular or special meeting of the directors of the Corporation may be held at
such place as the Board, or in the absence of such designation, as the notice
calling such meeting, may designate. A waiver of notice signed by the
directors may designate any place for the holding of such meeting.
Section
3.8
|
Notice
of Meetings
|
Except as
otherwise provided in Section 3.7
above, there shall be delivered to each director at the address appearing for
him or her on the records of the Corporation, at least twenty-four
(24) hours before the time of such meeting, a copy of a written notice of
any meeting (a) by delivery of such notice personally, (b) by mailing
such notice postage prepaid, (c) by facsimile, (d) by overnight
courier, (e) by telegram, or (f) by electronic transmission or
electronic writing, including, but not limited to, email. If mailed
to an address inside the United States, the notice shall be deemed delivered two
(2) business days following the date the same is deposited in the United
States mail, postage prepaid. If mailed to an address outside the
United States, the notice shall be deemed delivered four (4) business days
following the date the same is deposited in the United States mail, postage
prepaid. If sent via facsimile, by electronic transmission or
electronic writing, including, but not limited to, email, the notice shall be
deemed delivered upon sender's receipt of confirmation of the successful
transmission. If sent via overnight courier, the notice shall be
deemed delivered the business day following the delivery of such notice to the
courier. If the address of any director is incomplete or does not
appear upon the records of the Corporation it will be sufficient to address any
notice to such director at the registered office of the
Corporation. Any director may waive notice of any meeting, and the
attendance of a director at a meeting and oral consent entered on the minutes of
such meeting shall constitute waiver of notice of the meeting unless such
director objects, prior to the transaction of any business, that the meeting was
not lawfully called, noticed or convened. Attendance for the express
purpose of objecting to the transaction of business thereat because the meeting
was not properly called or convened shall not constitute presence or a waiver of
notice for purposes hereof. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Board need be
specified in the notice or waiver of notice of such meeting.
Section
3.9
|
Quorum;
Adjourned Meetings
|
(a) A
majority of the directors in office, at a meeting duly assembled, is necessary
to constitute a quorum for the transaction of business.
— 13
—
(b) At
any meeting of the Board where a quorum is not present, a majority of those
present may adjourn, from time to time, until a quorum is present, and no notice
of such adjournment shall be required. At any adjourned meeting where
a quorum is present, any business may be transacted which could have been
transacted at the meeting originally called.
Section
3.10
|
Manner
of Acting; Presumption of Assent
|
The
affirmative vote of a majority of the directors present at a meeting at which a
quorum is present is the act of the Board. A director of the
Corporation who is present at a meeting of the Board at which action on any
corporate matter is taken shall be presumed to have assented to the action
unless his dissent shall be entered in the minutes of the meeting or unless he
shall file his written dissent to such action with the person acting as
Secretary of the meeting before the adjournment thereof or shall forward any
dissent by certified or registered mail to the Secretary of the Corporation
immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such
action.
Section
3.11
|
Telephonic
Meetings
|
Members
of the Board or of any committee designated by the Board may participate in a
meeting of the Board or such committee by means of a telephone conference or
video or similar method of communication by which all persons participating in
such meeting can hear each other. Participation in a meeting pursuant
to this Section 3.13
constitutes presence in person at the meeting.
Section
3.12
|
Action
Without Meeting
|
Any
action required or permitted to be taken at a meeting of the Board or of a
committee thereof may be taken without a meeting if, before or after the action,
a written consent thereto is signed by all of the members of the Board or the
committee. The written consent may be signed in counterparts,
including, without limitation, facsimile counterparts, and shall be filed with
the minutes of the proceedings of the Board or committee.
Section
3.13
|
Powers
and Duties
|
(a) Except
as otherwise restricted by the laws of the State of Nevada or the Articles of
Incorporation, the Board has full control over the business and affairs of the
Corporation. The Board may delegate any of its authority to manage,
control or conduct the business of the Corporation to any standing or special
committee in accordance with Section 3.16, or
to any officer or agent, and to appoint any persons to be agents of the
Corporation with such powers, including the power to sub-delegate, and upon such
terms as may be deemed fit.
(b) The
Board, in its discretion, or the officer of the Corporation presiding at a
meeting of stockholders, in his discretion, may (i) require that any votes
cast at such meeting shall be cast by written ballot, and/or (ii) submit
any contract or act for approval or ratification at any annual meeting of the
stockholders or any special meeting properly called and noticed for the purpose
of considering any such contract or act, provided a quorum is
present.
— 14
—
Section
3.14
|
Committees
|
Committees
designated and appointed by the Board shall function subject to and in
accordance with the following regulations and procedures:
(a) Designation and
Appointment. The Board may designate and appoint one or more
committees under such name or names and for such purpose or function as may be
deemed appropriate or under no name.
(b) Members; Alternate Members;
Terms. Each committee thus designated and appointed shall
consist of one or more of the directors of the Corporation. The Board
may designate one or more of its members as alternate members of any committee,
who may, subject to any limitations imposed by the entire Board, replace absent
or disqualified members at any meeting of that committee. If the
Board has not designated alternate members to a committee, then in the absence
or disqualification of a member of a committee from a meeting, the member or
members thereof present at such meeting and not disqualified from voting,
whether or not he, she or they constitute a quorum, may unanimously appoint
another member of the Board to act at such meeting in the place of any such
absent or disqualified member ("substitute
member"). The members or alternate members of any such
committee shall serve at the pleasure of and subject to the discretion of the
Board.
(c) Authority. Each
committee, to the extent provided in the resolution of the Board creating same,
shall have and may exercise such of the powers and authority of the Board in the
management of the business and affairs of the Corporation as the Board may
direct and delegate, except, however, those matters which are required by
statute to be reserved unto or acted upon by the entire Board.
(d) Records. Each such
committee shall keep and maintain regular records or minutes of its meetings and
report the same to the Board when required.
(e) Change in
Number. The number of members or alternate members of any
committee appointed by the Board, as herein provided, may be increased or
decreased from time to time by appropriate resolution adopted by of the
Board.
(f) Vacancies. Vacancies
in the membership of any committee designated and appointed hereunder shall be
filled by the Board, at a regular or special meeting of the Board, in a manner
consistent with the provisions of this Section 3.16.
(g) Removal. Any
member or alternate member of any committee appointed hereunder may be removed
by the Board by the Board, whenever in its judgment the best interests of the
Corporation will be served thereby.
(h) Meetings. The
time, place and notice (if any) of committee meetings shall be determined by the
members of such committee.
— 15
—
(i) Quorum; Requisite
Vote. At meetings of any committee appointed hereunder, a
majority of the number of members designated by the Board to such committee
shall constitute a quorum for the transaction of business. For
purposes of determining the presence of a quorum, alternate members or
substitute members acting in the place of members at a meeting shall be counted
to the same extent as the members of the committee they are replacing; provided,
however, that for purposes of determining the presence of a quorum, alternate
members and substitute members (whether or not acting in the place of members at
a meeting) shall not be included in the number of members designated by the
Board to such committee. The act of a majority of the members (and to
if acting in the place of members, alternate members or substitute members) of
the committee present at any meeting at which a quorum is present shall be the
act of such committee, except as otherwise specifically provided by
statute. If a quorum is not present at a meeting of such committee,
the members of such committee present may adjourn the meeting from time to time,
without notice other than an announcement at the meeting, until a quorum is
present.
(j) Compensation. Appropriate
compensation for members and alternate members of any committee appointed
pursuant to the authority hereof may be authorized by the Board pursuant to the
provisions of Section 3.16
hereof or by a committee specifically authorized by the Board to authorize
compensation.
(k) Action Without
Meetings. Any action required or permitted to be taken at a
meeting of any committee may be taken without a meeting if a consent in writing,
setting forth the action so taken, is signed by all members of such
committee. Such consent shall have the same force and effect as a
unanimous vote at a meeting. The signed consent, or a signed copy,
shall become a part of the record of such committee.
Section
3.15
|
Compensation
|
The
Board, without regard to personal interest, may establish the compensation of
directors for services in any capacity. If the Board establishes the
compensation of directors pursuant to this subsection, such compensation is
presumed to be fair to the Corporation unless proven unfair by a preponderance
of the evidence.
Section
3.16
|
Organization
|
Meetings
of the Board shall be presided over by the chairman of the board, or in the
absence of the chairman of the board by the vice-chairman, or in
his or her absence by a chairman chosen at the
meeting. The Secretary, or in the absence of the Secretary an
Assistant Secretary, shall act as Secretary of the meeting, but in the absence
of the Secretary and any Assistant Secretary the chairman of the meeting may
appoint any person to act as Secretary of the meeting. The order of
business at each such meeting shall be as determined by the chairman of the
meeting.
Section
3.17
|
Advisory
Panels
|
The Board
may appoint one or more advisory panels to consult and advise the board on
technical or other matters as the Board may determine and upon such terms and at
such times as the Board may determine. The advisory panel members
shall not be directors, officers, or committee members and shall have none of
the powers or duties thereof.
— 16
—
ARTICLE
IV
OFFICERS
Section
4.1
|
Election
|
The
officers of the Corporation elected by the Board shall be a Chairman of the
Board, a Chief Executive Officer, a President, a Chief Financial Officer, a
Secretary and such other officers (including without limitation, Vice
Presidents, Assistant Secretaries and a Treasurer) as the Board from time to
time may determine. Officers elected by the Board shall each have such powers
and duties as generally pertain to their respective offices, subject to the
specific provisions of this Article IV. Such
officers shall also have such powers and duties as from time to time may be
conferred by the Board. The Chief Executive Officer or President may also
appoint such other officers (including without limitation one or more Vice
Presidents and Controllers) as may be necessary or desirable for the conduct of
the business of the Corporation. Such other officers shall have such powers and
duties and shall hold their offices for such terms as may be provided in these
Bylaws or as may be prescribed by the Board or, if such officer has been
appointed by the Chief Executive Officer or President, as may be prescribed by
the appointing officer.
Section
4.2
|
Removal;
Resignation
|
The
elected officers of the Corporation shall be appointed by the Board and shall
hold office until their successors are duly elected and qualified by the Board
or until their earlier death, resignation, retirement, disqualification, or
removal from office. Any officer may be removed, with or without cause, at any
time by the Board. Any officer appointed by the Chief Executive Officer or
President may also be removed, with or without cause, by the Chief Executive
Officer or President, as the case may be, unless the Board otherwise
provides.
Section
4.3
|
Vacancies
|
Any
vacancy occurring in any elected office of the Corporation may be filled by the
Board. Any vacancy occurring in any office appointed by the Chief Executive
Officer or President may be filled by the Chief Executive Officer, or President,
as the case may be, unless the Board then determines that such office shall
thereupon be elected by the Board, in which case the Board shall elect such
officer.
Section
4.4
|
Chief
Executive Officer
|
The Board
may elect a Chief Executive Officer who, subject to the supervision and control
of the Board, shall have the ultimate responsibility for the management and
control of the business and affairs of the Corporation, and shall perform such
other duties and have such other powers which are delegated to him or her by the
Board, these Bylaws or as may be provided by law.
— 17
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Section
4.5
|
President
|
The
President, subject to the supervision and control of the Board, shall in general
actively supervise and control the business and affairs of the
Corporation. The President shall keep the Board fully informed as the
Board may request and shall consult the Board concerning the business of the
Corporation. The President shall perform such other duties and have
such other powers which are delegated and assigned to him or her by the Board if
any, these Bylaws or as may be provided by law.
Section
4.6
|
Chief
Financial Officer
|
The Chief
Financial Officer shall perform all duties commonly incident to that office
(including, without limitation, the care and custody of the funds and securities
of the Corporation, which from time to time may come into the Chief Financial
Officer’s hands and the deposit of the funds of the Corporation in such banks or
trust companies as the Board, the Chief Executive Officer or the President may
authorize).
Section
4.7
|
Vice
Presidents
|
The Board
may elect one or more Vice Presidents. In the absence or disability
of the President, or at the President's request, the Vice President or Vice
Presidents, in order of their rank as fixed by the Board, and if not ranked, the
Vice Presidents in the order designated by the Board, or in the absence of such
designation, in the order designated by the President, shall perform all of the
duties of the President, and when so acting, shall have all the powers of, and
be subject to all the restrictions on the President. Each Vice
President shall perform such other duties and have such other powers which are
delegated and assigned to him or her by the Board, the President, these Bylaws
or as may be provided by law.
Section
4.8
|
Secretary
|
The
Secretary shall attend all meetings of the stockholders, the Board and any
committees, and shall keep, or cause to be kept, the minutes of proceeds thereof
in books provided for that purpose. He or she shall keep, or cause to
be kept, a register of the stockholders of the Corporation and shall be
responsible for the giving of notice of meetings of the stockholders, the Board
and any committees, and shall see that all notices are duly given in accordance
with the provisions of these Bylaws or as required by law. The
Secretary shall be custodian of the corporate seal, the records of the
Corporation, the stock certificate books, transfer books and stock ledgers, and
such other books and papers as the Board or appropriate committee may
direct. The Secretary shall perform all other duties commonly
incident to his or her office and shall perform such other duties which are
assigned to him or her by the Board, the Chief Executive Officer, if any, the
President, these Bylaws or as may be provided by law.
Section
4.9
|
Assistant
Secretaries
|
An
Assistant Secretary shall, at the request of the Secretary, or in the absence or
disability of the Secretary, perform all the duties of the
Secretary. He or she shall perform such other duties as are assigned
to him or her by the Board, the Chief Executive Officer, if any, the President,
these Bylaws or as may be provided by law.
— 18
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Section
4.10
|
Treasurer
|
The
Treasurer, subject to the order of the Board, shall have the care and custody
of, and be responsible for, all of the money, funds, securities, receipts and
valuable papers, documents and instruments of the Corporation, and all books and
records relating thereto. The Treasurer shall keep, or cause to be
kept, full and accurate books of accounts of the Corporation's transactions,
which shall be the property of the Corporation, and shall render financial
reports and statements of condition of the Corporation when so requested by the
Board, the chairman of the board, if any, the Chief Executive Officer, if any,
or the President. The Treasurer shall perform all other duties
commonly incident to his or her office and such other duties as may, from time
to time, be assigned to him or her by the Board, the Chief Executive Officer, if
any, the President, these Bylaws or as may be provided by law. The
Treasurer shall, if required by the Board, give bond to the Corporation in such
sum and with such security as shall be approved by the Board for the faithful
performance of all the duties of the Treasurer and for restoration to the
Corporation, in the event of the Treasurer's death, resignation, retirement or
removal from office, of all books, records, papers, vouchers, money and other
property in the Treasurer's custody or control and belonging to the
Corporation. The expense of such bond shall be borne by the
Corporation. If a chief financial officer of the Corporation has not
been appointed, the Treasurer may be deemed the chief financial officer of the
Corporation.
Section
4.11
|
Assistant
Treasurers
|
An
Assistant Treasurer shall, at the request of the Treasurer, or in the absence or
disability of the Treasurer, perform all the duties of the
Treasurer. He or she shall perform such other duties which are
assigned to him or her by the Board, the Chief Executive Officer, the President,
the Treasurer, these Bylaws or as may be provided by law. The Board
may require an Assistant Treasurer to give a bond to the Corporation in such sum
and with such security as it may approve, for the faithful performance of the
duties of the Assistant Treasurer, and for restoration to the Corporation, in
the event of the Assistant Treasurer's death, resignation, retirement or removal
from office, of all books, records, papers, vouchers, money and other property
in the Assistant Treasurer's custody or control and belonging to the
Corporation. The expense of such bond shall be borne by the
Corporation.
Section
4.12
|
Execution
of Negotiable Instruments, Deeds and
Contracts
|
All
checks, drafts, notes, bonds, bills of exchange, and orders for the payment of
money of the Corporation; all deeds, mortgages, proxies, powers of attorney and
other written contracts, documents, instruments and agreements to which the
Corporation shall be a party; and all assignments or endorsements of stock
certificates, registered bonds or other securities owned by the Corporation
shall be signed in the name of the Corporation by such officers or other persons
as the Board may from time to time designate. The Board may authorize
the use of the facsimile signatures of any such persons. Any officer
of the Corporation shall be authorized to attend, act and vote, or designate
another officer or an agent of the Corporation to attend, act and vote, at any
meeting of the owners of any entity in which the Corporation may own an interest
or to take action by written consent in lieu thereof. Such officer or
agent, at any such meeting or by such written action, shall possess and may
exercise on behalf of the Corporation any and all rights and powers incident to
the ownership of such interest.
— 19
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ARTICLE
V
CAPITAL
STOCK
Section
5.1
|
Issuance
|
Shares of
the Corporation's authorized stock shall, subject to any provisions or
limitations of the laws of the State of Nevada, the Articles of Incorporation or
any contracts or agreements to which the Corporation may be a party, be issued
in such manner, at such times, upon such conditions and for such consideration
as shall be prescribed by the Board.
Section
5.2
|
Stock
Certificates and Uncertificated
Shares
|
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 President, the Chief
Executive Officer, if any, or a Vice President, and by the Secretary or an
Assistant Secretary, of the Corporation (or any other two officers or agents so
authorized by the Board), certifying the number of shares of stock owned by him,
her or it in the Corporation; provided, however, that the Board may authorize
the issuance of uncertificated shares of some or all of any or all classes or
series of the Corporation's stock. Any such issuance of
uncertificated shares shall have no effect on existing certificates for shares
until such certificates are surrendered to the Corporation, or on the respective
rights and obligations of the stockholders. Whenever such certificate
is countersigned or otherwise authenticated by a transfer agent or a transfer
clerk and by a registrar (other than the Corporation), then a facsimile of the
signatures of any corporate officers or agents, the transfer agent, transfer
clerk or the registrar of the Corporation may be printed or lithographed upon
the certificate in lieu of the actual signatures. In the event that
any officer or officers who have signed, or whose facsimile signatures have been
used on any certificate or certificates for stock cease to be an officer or
officers because of death, resignation or other reason, before the certificate
or certificates for stock have been delivered by the Corporation, the
certificate or certificates may nevertheless be adopted by the Corporation and
be issued and delivered as though the person or persons who signed the
certificate or certificates, or whose facsimile signature or signatures have
been used thereon, had not ceased to be an officer or officers of the
Corporation.
Within a
reasonable time after the issuance or transfer of uncertificated shares, the
Corporation shall send to the registered owner thereof a written statement
certifying the number of shares owned by him, her or it in the Corporation and,
at least annually thereafter, the Corporation shall provide to such stockholders
of record holding uncertificated shares, a written statement confirming the
information contained in such written statement previously
sent. Except as otherwise expressly provided by law, the rights and
obligations of the stockholders shall be identical whether or not their shares
of stock are represented by certificates.
Each
certificate representing shares shall state the following upon the face
thereof: the name of the state of the Corporation's organization; the
name of the person to whom issued; the number and class of shares and the
designation of the series, if any, which such certificate represents; the par
value of each share, if any, represented by such certificate or a statement that
the shares are without par value. Certificates of stock shall be in
such form consistent with law as shall be prescribed by the Board. No
certificate shall be issued until the shares represented thereby are fully
paid. In addition to the above, all certificates evidencing shares of
the Corporation's stock or other securities issued by the Corporation shall
contain such legend or legends as may from time to time be required by the NRS
and/or such other federal, state or local laws or regulations then in
effect.
— 20
—
Section
5.3
|
Surrendered;
Lost or Destroyed Certificates
|
All
certificates surrendered to the Corporation, except those representing shares of
treasury stock, shall be canceled and no new certificate shall be issued until
the former certificate for a like number of shares shall have been canceled,
except that in case of a lost, stolen, destroyed or mutilated certificate, a new
one may be issued therefor. However, any stockholder applying for the
issuance of a stock certificate in lieu of one alleged to have been lost,
stolen, destroyed or mutilated shall, prior to the issuance of a replacement,
provide the Corporation with his, her or its affidavit of the facts surrounding
the loss, theft, destruction or mutilation and, if required by the Board, an
indemnity bond in an amount satisfactory to the Board or an authorized officer
which amount may be in excess of the current market value of the stock, and upon
such terms as the Treasurer, other officer who is so authorized, or the Board
shall require which shall indemnify the Corporation against any loss, damage,
cost or inconvenience arising as a consequence of the issuance of a replacement
certificate.
Section
5.4
|
Replacement
Certificate
|
When the
Articles of Incorporation are amended in any way affecting the statements
contained in the certificates for outstanding shares of capital stock of the
Corporation or it becomes desirable for any reason, in the discretion of the
Board, including, without limitation, the merger of the Corporation with another
Corporation or the conversion or reorganization of the Corporation, to cancel
any outstanding certificate for shares and issue a new certificate therefor
conforming to the rights of the holder, the Board may order any holders of
outstanding certificates for shares to surrender and exchange the same for new
certificates within a reasonable time to be fixed by the Board. The
order may provide that a holder of any certificate(s) ordered to be surrendered
shall not be entitled to vote, receive distributions or exercise any other
rights of stockholders of record until the holder has complied with the order,
but the order operates to suspend such rights only after notice and until
compliance.
Section
5.5
|
Transfer
of Shares
|
No
transfer of stock shall be valid as against the Corporation except on surrender
and cancellation of the certificates therefor accompanied by an assignment or
transfer by the registered owner made either in person or under
assignment. Whenever any transfer shall be expressly made for
collateral security and not absolutely, the collateral nature of the transfer
shall be reflected in the entry of transfer in the records of the
Corporation. Subject to the provisions hereof, the Corporation shall
register the transfer of a certificate evidencing shares of its capital stock
presented to it for transfer if:
(a) Endorsement. Upon
surrender of the certificate to the Corporation (or its transfer agent, as the
case may be) for transfer, the certificate (or an appended stock power) is
properly endorsed by the registered owner, or by his duly authorized legal
representative or attorney-in-fact, with proper written evidence of the
authority and appointment of such representative, if any, accompanying the
certificate;
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—
(b) Guaranty and Effectiveness of
Signature. The signature of such registered owner or his legal
representative or attorney-in-fact, as the case may be, has been guaranteed by a
national banking association or member of the New York Stock Exchange, and
reasonable assurance in a form satisfactory to the Corporation is given that
such endorsements are genuine and effective;
(c) Adverse
Claims. The Corporation has no notice of an adverse claim or
has otherwise discharged any duty to inquire into such a claim;
(d) Collection of
Taxes. Any applicable law (local, state or federal) relating
to the collection of taxes relative to the transaction has been complied with;
and
(e) Additional Requirements
Satisfied. Such additional conditions and documentation as the
Corporation (or its transfer agent, as the case may be) shall reasonably
require, including without limitation thereto, the delivery with the surrender
of such stock certificate or certificates of proper evidence of succession,
assignment or other authority to obtain transfer thereof, as the circumstances
may require, and such legal opinions with reference to the requested transfer as
shall be required by the Corporation (or its transfer agent) pursuant to the
provisions of these Bylaws and applicable law, shall have been
satisfied.
Section
5.6
|
Transfer
Agent; Registrars
|
The Board
may appoint one or more transfer agents, transfer clerks and registrars of
transfer and may require all certificates for shares of stock to bear the
signature of such transfer agents, transfer clerks and/or registrars of
transfer.
Section
5.7
|
Miscellaneous
|
The Board
shall have the power and authority to make such rules and regulations not
inconsistent herewith as it may deem expedient concerning the issue, transfer,
and registration of certificates for shares of the Corporation's
stock.
ARTICLE
VI
DISTRIBUTIONS
Distributions
may be declared, subject to the provisions of the laws of the State of Nevada
and the Articles of Incorporation, by the Board and may be paid in cash,
property, shares of corporate stock, or any other medium. The Board
may fix in advance a record date, as provided in Section 2.5
above, prior to the distribution for the purpose of determining stockholders
entitled to receive any distribution.
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—
ARTICLE
VII
RECORDS;
REPORTS; SEAL; AND FINANCIAL MATTERS
Section
7.1
|
Records.
|
All
original records of the Corporation, shall be kept at the principal office of
the Corporation by or under the direction of the Secretary or at such other
place or by such other person as may be prescribed by these Bylaws or the
Board.
Section
7.2
|
Corporate
Seal
|
The Board
may, by resolution, authorize a seal, and the seal may be used by causing it, or
a facsimile, to be impressed or affixed or reproduced or
otherwise. Except when otherwise specifically provided herein, any
officer of the Corporation shall have the authority to affix the seal to any
document requiring it.
Section
7.3
|
Fiscal
Year-End
|
The
fiscal year-end of the Corporation shall be such date as may be fixed from time
to time by resolution of the Board.
ARTICLE
VIII
INDEMNIFICATION
Section
8.1
|
Indemnification
and Insurance
|
(a) Indemnification
of Directors and Officers.
(i) For
purposes of this Article, (A) "Indemnitee"
shall mean each director or officer who was or is a party to, or is threatened
to be made a party to, or is otherwise involved in, any Proceeding (as
hereinafter defined), by reason of the fact that he or she is or was a director
or officer of the Corporation or member, manager or managing member of a
predecessor limited liability company or affiliate of such limited liability
company or is or was serving in any capacity at the request of the Corporation
as a director, officer, employee, agent, partner, member, manager or fiduciary
of, or in any other capacity for, another corporation or any partnership, joint
venture, limited liability company, trust, or other enterprise; and
(B) "Proceeding"
shall mean any threatened, pending, or completed action, suit or proceeding
(including, without limitation, an action, suit or proceeding by or in the right
of the Corporation), whether civil, criminal, administrative, or
investigative.
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—
(ii) Each
Indemnitee shall be indemnified and held harmless by the Corporation to the
fullest extent permitted by Nevada law, against all expense, liability and loss
(including, without limitation, attorneys' fees, judgments, fines, taxes,
penalties, and amounts paid or to be paid in settlement) reasonably incurred or
suffered by the Indemnitee in connection with any Proceeding; provided that such
Indemnitee either is not liable pursuant to NRS 78.138 or acted in good faith
and in a manner such Indemnitee reasonably believed to be in or not opposed to
the best interests of the Corporation and, with respect to any Proceeding that
is criminal in nature, had no reasonable cause to believe that his or her
conduct was unlawful. The termination of any 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 Indemnitee is
liable pursuant to NRS 78.138 or did not act in good faith and in a manner in
which he or she reasonably believed to be in or not opposed to the best
interests of the Corporation, or that, with respect to any criminal proceeding
he or she had reasonable cause to believe that his or her conduct was
unlawful. The Corporation shall not indemnify an Indemnitee for any
claim, issue or matter as to which the Indemnitee has been adjudged by a court
of competent jurisdiction, after exhaustion of all appeals therefrom, to be
liable to the Corporation or for any amounts paid in settlement to the
Corporation, unless and only to the extent that the court in which the
Proceeding was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the Indemnitee is
fairly and reasonably entitled to indemnity for such amounts as the court deems
proper. Except as so ordered by a court and for advancement of
expenses pursuant to this Section, indemnification may not be made to or on
behalf of an Indemnitee if a final adjudication establishes that his or her acts
or omissions involved intentional misconduct, fraud or a knowing violation of
law and was material to the cause of action. Notwithstanding anything
to the contrary contained in these Bylaws, no director or officer may be
indemnified for expenses incurred in defending any threatened, pending, or
completed action, suit or proceeding (including without limitation, an action,
suit or proceeding by or in the right of the Corporation), whether civil,
criminal, administrative or investigative, that such director or officer
incurred in his or her capacity as a stockholder.
(iii) Indemnification
pursuant to this Section shall continue as to an Indemnitee who has ceased to be
a director or officer of the Corporation or member, manager or managing member
of a predecessor limited liability company or affiliate of such limited
liability company or a director, officer, employee, agent, partner, member,
manager or fiduciary of, or to serve in any other capacity for, another
corporation or any partnership, joint venture, limited liability company, trust,
or other enterprise and shall inure to the benefit of his or her heirs,
executors and administrators.
(iv) The
expenses of Indemnitees must be paid by the Corporation or through insurance
purchased and maintained by the Corporation or through other financial
arrangements made by the Corporation, as they are incurred and in advance of the
final disposition of the 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 or she is not entitled
to be indemnified by the Corporation. To the extent that a director
or officer of the Corporation is successful on the merits or otherwise in
defense of any Proceeding, or in the defense of any claim, issue or matter
therein, the Corporation shall indemnify him or her against expenses, including
attorneys' fees, actually and reasonably incurred in by him or her in connection
with the defense.
(b) Indemnification of Employees and
Other Persons. The Corporation may, by action of its Board and
to the extent provided in such action, indemnify employees and other persons as
though they were Indemnitees.
— 24
—
(c) Non-Exclusivity of
Rights. The rights to indemnification provided in this Article
shall not be exclusive of any other rights that any person may have or hereafter
acquire under any statute, provision of the Articles of Incorporation or these
Bylaws, agreement, vote of stockholders or directors, or otherwise.
(d) Insurance. The
Corporation may purchase and maintain insurance or make other financial
arrangements on behalf of any Indemnitee for any liability asserted against him
or her and liability and expenses incurred by him or her in his or her capacity
as a director, officer, employee, member, managing member or agent, or arising
out of his or her status as such, whether or not the Corporation has the
authority to indemnify him or her against such liability and
expenses.
(e) Other Financial
Arrangements. The other financial arrangements which may be
made by the Corporation may include the following: (i) the
creation of a trust fund; (ii) the establishment of a program of
self-insurance; (iii) the securing of its obligation of indemnification by
granting a security interest or other lien on any assets of the Corporation;
(iv) the establishment of a letter of credit, guarantee or
surety. No financial arrangement made pursuant to this subsection may
provide protection for a person adjudged by a court of competent jurisdiction,
after exhaustion of all appeals therefrom, to be liable for intentional
misconduct, fraud, or a knowing violation of law, except with respect to
advancement of expenses or indemnification ordered by a court.
(f) Other Matters Relating to Insurance
or Financial Arrangements. Any insurance or other financial
arrangement made on behalf of a person pursuant to this Section may be provided
by the Corporation or any other person approved by the Board, even if all or
part of the other person's stock or other securities is owned by the
Corporation. In the absence of fraud (i) the decision of the
Board as to the propriety of the terms and conditions of any insurance or other
financial arrangement made pursuant to this Section and the choice of the person
to provide the insurance or other financial arrangement is conclusive; and
(ii) the insurance or other financial arrangement is not void or voidable
and does not subject any director approving it to personal liability for his
action; even if a director approving the insurance or other financial
arrangement is a beneficiary of the insurance or other financial
arrangement.
Section
8.2
|
Amendment
|
The
provisions of this Article VIII relating to indemnification shall
constitute a contract between the Corporation and each of its directors and
officers which may be modified as to any director or officer only with that
person's consent or as specifically provided in this
Section. Notwithstanding any other provision of these Bylaws relating
to their amendment generally, any repeal or amendment of this Article which is
adverse to any director or officer shall apply to such director or officer only
on a prospective basis, and shall not limit the rights of an Indemnitee to
indemnification with respect to any action or failure to act occurring prior to
the time of such repeal or amendment. Notwithstanding any other
provision of these Bylaws (including, without limitation, Article X below),
no repeal or amendment of these Bylaws shall affect any or all of this
Article VIII so as to limit or reduce the indemnification in any manner
unless adopted by (a) the unanimous vote of the directors of the
Corporation then serving, or (b) by the stockholders as set forth in
Article X hereof; provided that no such amendment shall have a retroactive
effect inconsistent with the preceding sentence.
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—
ARTICLE
IX
CHANGES
IN NEVADA LAW
References
in these Bylaws to Nevada law or the NRS or to any provision thereof shall be to
such law as it existed on the date these Bylaws were adopted or as such law
thereafter may be changed; provided that (a) in the case of any change
which expands the liability of directors or officers or limits the
indemnification rights or the rights to advancement of expenses which the
Corporation may provide in Article VIII hereof, the rights to limited
liability, to indemnification and to the advancement of expenses provided in the
Articles of Incorporation and/or these Bylaws shall continue as theretofore to
the extent permitted by law; and (b) if such change permits the
Corporation, without the requirement of any further action by stockholders or
directors, to limit further the liability of directors or limit the liability of
officers or to provide broader indemnification rights or rights to the
advancement of expenses than the Corporation was permitted to provide prior to
such change, then liability thereupon shall be so limited and the rights to
indemnification and the advancement of expenses shall be so broadened to the
extent permitted by law.
ARTICLE
X
AMENDMENT
OR REPEAL
Section
10.1
|
Amendment
of Bylaws
|
The Board
shall have the power to adopt, amend, alter or repeal the Bylaws. The
affirmative vote of a majority of the Whole Board shall be required to adopt,
amend, alter or repeal the Bylaws. The Bylaws also may be adopted, amended,
altered or repealed by the stockholders; provided, however, that in addition to
any vote of the holders of any class or series of capital stock of the
Corporation required by applicable law or the Articles of Incorporation, the
affirmative vote of the holders of at least a majority of the voting power of
all outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required for the stockholders to adopt, amend, alter or repeal the
Bylaws.
[Remainder
of Page Intentionally Left Blank]
— 26
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CERTIFICATE
OF SECRETARY
I hereby
certify that I am the Secretary of RLJ Acquisition, Inc., a Nevada corporation,
and that the foregoing Bylaws, consisting of 27 pages, constitute the code of
Bylaws of RLJ Acquisition, Inc. as duly adopted by the unanimous written consent
of the Board as of ______________, 2011.
IN
WITNESS WHEREOF, I have hereunto subscribed my name this _____ day of _________
2011.
Lisa
P. Pickrum
|
— 27
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