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8-K - FORM 8-K - PROSPECT GLOBAL RESOURCES INC. | c20138e8vk.htm |
Exhibit 3.2
SECOND AMENDED AND RESTATED
BYLAWS
OF
PROSPECT GLOBAL RESOURCES INC.
BYLAWS
OF
PROSPECT GLOBAL RESOURCES INC.
A Nevada Corporation
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the corporation in
the state of Nevada is 311 S. Division Street, Carson City, Nevada 89703. The name of its
registered agent at such address is The Corporation Trust Company. The registered office and/or
registered agent of the corporation may be changed from time to time by action of the board of
directors.
Section 2. Other Offices. The corporation may also have 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. Place and Time of Meetings. An annual meeting of the stockholders
shall be held each year for the purpose of electing directors and conducting such other proper
business as may come before the meeting. The date, time and place of the annual meeting may be
determined by resolution of the board of directors or as set by the chief executive officer of the
corporation.
Section 2. Special Meetings. Special meetings of the stockholders may be
called for any purpose (including, without limitation, the filling of board vacancies and newly
created directorships), and may be held at such time and place, within or without the State of
Nevada, as shall be stated in a notice of meeting or in a duly executed waiver of notice thereof.
Such meetings may be called at any time by two or more members of the board of directors or the
chief executive officer and shall be called by the chief executive officer upon the written request
of holders of shares entitled to cast not less than 30% of the outstanding shares of any series or
class of the corporations capital stock.
Section 3. Place of Meetings. The board of directors may designate any
place, either within or without the State of Nevada, as the place of meeting for any annual meeting
or for any special meeting called by the board of directors. If no designation is made, or if a
special meeting be otherwise called, the place of meeting shall be the principal executive office
of the corporation.
Section 4. Notice. Whenever stockholders are required or permitted to take
action at a meeting, written or printed notice stating the place, date, time, and, in the case of
special meetings, the purpose or purposes, of such meeting, shall be given to each stockholder
entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the
meeting. All such notices shall be delivered, either personally or by mail, by or at the direction
of the board of directors, the chief executive officer, the president, the chief operating officer
or the secretary, and if mailed, such notice shall be deemed to be delivered when deposited in the
United States mail, postage prepaid, addressed to the stockholder at his, her or its address as the
same appears on the records of the corporation. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends for the express
purpose of objecting at the beginning of the meeting to the transaction of any business because the
meeting is not lawfully called or convened.
Section 5. Stockholders List. The officer having charge of the stock ledger
of the corporation shall make, at least 10 days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order,
showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least 10 days prior to
the meeting, either at a place within the city where the meeting is to be held, which place shall
be specified in the notice of the meeting or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is present.
Section 6. Quorum. Except as otherwise provided by applicable law or by the
certificate of incorporation, a majority of the outstanding shares of the corporation entitled to
vote, represented in person or by proxy, shall constitute a quorum at a meeting of stockholders.
If less than a majority of the outstanding shares are represented at a meeting, a majority of the
shares so represented may adjourn the meeting from time to time in accordance with Section 7 of
this Article II, until a quorum shall be present or represented.
Section 7. Adjourned Meetings. When a meeting is adjourned to another time
and place, 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. At the adjourned meeting the
corporation may transact any business which might have been transacted at the original meeting. If
the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 8. Vote Required. When a quorum is present, the affirmative vote of
the majority of shares present in person or represented by proxy at the meeting and entitled to
vote on the subject matter shall be the act of the stockholders, unless the question is one
upon which by express provisions of an applicable law or of the certificate of incorporation a
different vote is required, in which case such express provision shall govern and control the
decision of such question. Where a separate vote by class is required, the affirmative vote of the
majority of shares of such class present in person or represented by proxy at the meeting shall be
the act of such class.
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Section 9. Voting Rights. Except as otherwise provided by the Nevada Revised
Statutes or by the corporations certificate of incorporation or any amendments thereto, and
subject to Section 3 of Article VI hereof, every stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of common stock held by
such stockholder.
Section 10. 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 him, her or it by proxy. Every proxy must be signed
by the stockholder granting the proxy or by his, her or its attorney-in-fact. No proxy shall be
voted or acted upon after three years from its date, unless the proxy provides for a longer period.
A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as
long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy
may be made irrevocable regardless of whether the interest with which it is coupled is an interest
in the stock itself or an interest in the corporation generally.
Section 11. Action by Written Consent. Unless otherwise provided in the
certificate of incorporation, any action required to be taken at any annual or special meeting of
stockholders of the corporation, 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 or consents in writing, setting forth the action so taken and bearing the dates of
signature of the stockholders who signed the consent or consents, 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, or the corporations principal place of business, or an officer or agent of
the corporation having custody of the book or books in which proceedings of meetings of the
stockholders are recorded. Delivery made to the corporations registered office shall be by hand
or by certified or registered mail, return receipt requested; provided, however, that no consent or
consents delivered by certified or registered mail shall be deemed delivered until such consent or
consents are actually received at the registered office. All consents properly delivered in
accordance with this section shall be deemed to be recorded when so delivered. No written consent
shall be effective to take the corporate action referred to therein unless, within 60 days of the
earliest dated consent delivered to the corporation as required by this section, written consents
signed by the holders of a sufficient number of shares to take such corporate action are so
recorded. Prompt notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not consented in writing.
Any
action taken pursuant to such written consent or consents of the stockholders shall have the same
force and effect as if taken by the stockholders at a meeting thereof.
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ARTICLE III
DIRECTORS
Section 1. General Powers. The business and affairs of the corporation shall
be managed by or under the direction of the board of directors.
Section 2. Number, Election and Term of Office. The number of directors
which shall constitute the first board of directors shall be one. Thereafter, the number of
directors shall be established from time to time by resolution of the board of directors. The
directors shall be elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote in the election of directors. The
directors shall be elected in this manner at the annual meeting of the stockholders, except as
provided in Section 4 of this Article III. Each director elected shall hold office until a
successor is duly elected and qualified or until his or her earlier death, resignation or removal
as hereinafter provided.
Section 3. Removal and Resignation. Subject to the terms of any stockholders
agreement to which some or all of the stockholders may be a party, any director or the entire board
of directors may be removed at any time, with or without cause, by the holders of a majority of the
shares then entitled to vote at an election of directors. Whenever the holders of any class or
series are entitled to elect one or more directors by the provisions of the corporations
certificate of incorporation, the provisions of this section shall apply, in respect to the removal
without cause or a director or directors so elected, to the vote of the holders of the outstanding
shares of that class or series and not to the vote of the outstanding shares as a whole. Any
director may resign at any time upon written notice to the corporation.
Section 4. Vacancies. Except as otherwise provided by the corporations
certificate of incorporation or any amendments thereto, vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled by a majority vote
of the directors then in office. Each director so chosen shall hold office until a successor is
duly elected and qualified or until his or her earlier death, resignation or removal as herein
provided.
Section 5. Annual Meetings. The annual meeting of each newly elected board
of directors shall be held without notice other than this bylaw immediately after, and at the same
place as, the annual meeting of stockholders.
Section 6. Other Meetings and Notice. Regular meetings, other than the
annual meeting, of the board of directors may be held without notice at such time and at such place
as shall from time to time be determined by resolution of the board of directors. Special meetings
of the board of directors may be called by or at the request of the chief
executive officer or chairman of the board on at least 24 hours notice to each director, either
personally, by telephone, by mail, or by email; in like manner and on like notice the chief
executive officer must call a special meeting on the written request of at least a majority of the
directors.
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Section 7. Quorum, Required Vote and Adjournment. A majority of the total
number of directors shall constitute a quorum for the transaction of business. The vote of a
majority of directors present at a meeting at which a quorum is present shall be the act of the
board of directors. If a quorum shall not be present at any meeting of the board of directors, the
directors present thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 8. Committees. The board of directors may, by resolution passed by a
majority of the whole board of directors, designate one or more committees, each committee to
consist of one or more of the directors of the corporation, which to the extent provided in such
resolution or these bylaws shall have and may exercise the powers of the board of directors in the
management and affairs of the corporation except as otherwise limited by law. The board of
directors may designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. Such committee or
committees shall have such name or names as may be determined from time to time by resolution
adopted by the board of directors. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
Section 9. Committee Rules. Each committee of the board of directors may fix
its own rules of procedure and shall hold its meetings as provided by such rules, except as may
otherwise be provided by a resolution of the board of directors designating such committee. Unless
otherwise provided in such a resolution, the presence of at least a majority of the members of the
committee shall be necessary to constitute a quorum. In the event that a member and that members
alternate, if alternates are designated by the board of directors as provided in Section 8 of this
Article III, of such committee is or are absent or disqualified, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another member of the board of directors to act at the
meeting in place of any such absent or disqualified member.
Section 10. Communications Equipment. Members of the board of directors or
any committee thereof may participate in and act at any meeting of the board of directors or such
committee through the use of a conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other. Participation in a meeting
pursuant to this Section 10 shall constitute presence in person at the meeting.
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Section 11. Waiver of Notice and Presumption of Assent. Any member of the
board of directors or any committee thereof who is present at a meeting shall be conclusively
presumed to have waived notice of such meeting except when such member
attends for the express purpose of objecting at the beginning of the meeting to the transaction of
any business because the meeting is not lawfully called or convened. Such member shall be
conclusively presumed to have assented to any action taken unless his or her dissent shall be
entered in the minutes of the meeting or unless his or her written dissent to such action shall be
filed with the person acting as the secretary of the meeting before the adjournment thereof or
shall be forwarded by registered mail to the secretary of the corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor
of such action.
Section 12. Action by Written Consent. Unless otherwise restricted by the
certificate of incorporation, any action required or permitted to be taken at any meeting of the
board of directors, or of any committee thereof, may be taken without a meeting if all members of
the board of directors or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the board of directors or
committee.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the corporation shall be elected by the
board of directors and shall consist of, if any is elected, a chairman of the board, a chief
executive officer, a president, a chief operating officer, a secretary, a treasurer, and such other
officers and assistant officers as may be deemed necessary or desirable by the board of directors.
Any number of offices may be held by the same person. In its discretion, the board of directors
may choose not to fill any office for any period as it may deem advisable.
Section 2. Election and Term of Office. The officers of the corporation
shall be elected annually by the board of directors at its first meeting held after each annual
meeting of stockholders or as soon thereafter as practicable. The chief executive officer shall
appoint other officers to serve for such terms as he or she deems desirable. Vacancies may be
filled or new offices created and filled at any meeting of the board of directors. Each officer
shall hold office until a successor is duly elected and qualified or until his or her earlier
death, resignation or removal as hereinafter provided.
Section 3. Removal. Any officer or agent elected by the board of directors
may be removed by the board of directors whenever in its judgment the best interests of the
corporation would be served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed.
Section 4. Vacancies. Any vacancy occurring in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the board of directors for
the unexpired portion of the term by the board of directors then in office.
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Section 5. Compensation. Compensation of all officers shall be fixed by the
board of directors, and no officer shall be prevented from receiving such compensation by virtue of
his or her also being a director of the corporation.
Section 6. The Chairman of the Board. The chairman of the board, if any,
shall be a member of the board of directors, an officer of the corporation, and, if present, shall
preside at each meeting of the board of directors or stockholders. The chairman of the board
shall, in the absence or disability of the chief executive officer, act with all of the powers and
be subject to all the restrictions of the chief executive officer. The chairman of the board shall
advise the chief executive officer, and in the chief executive officers absence, other officers of
the corporation, and shall have such other powers and perform such other duties as may be
prescribed by the board of directors or as may be provided in these bylaws.
Section 7. The Chief Executive Officer. The chief executive officer, if any,
shall be the chief executive officer of the corporation. In the absence of the chairman of the
board, or if a chairman of the board has not been elected, the chief executive officer shall
preside at all meetings of the stockholders and board of directors at which he or she is present.
The chief executive officer, subject to the powers of the board of directors, shall have general
charge of the business, affairs and property of the corporation, and control over its officers,
agents and employees; and shall see that all orders and resolutions of the board of directors are
carried into effect. The chief executive officer shall have such other powers and perform such
other duties as may be prescribed by the board of directors or as may be provided in these bylaws.
Section 8. The President. The president, if any, shall be the president of
the corporation. In the absence of the chairman of the board or the chief executive officer, or if
a chairman of the board or chief executive officer have not been elected, the president shall
preside at all meetings of the stockholders and board of directors at which he or she is present.
In the absence of the chief executive officer, the president, subject to the powers of the board of
directors, shall have general charge of the business, affairs and property of the corporation, and
control over its officers, agents and employees; and shall see that all orders and resolutions of
the board of directors are carried into effect. The president shall have such other powers and
perform such other duties as may be prescribed by the board of directors, the chief executive
officer or as may be provided in these bylaws.
Section 9. The Chief Operating Officer. The chief operating officer, if any,
shall be the chief operating officer of the corporation. Subject to the powers of the board of
directors, the chief operating officer shall have charge of the corporations day-to-day operations
and, in the absence of the chief executive officer and the president, or if a chief executive
officer or president have not been elected, shall have general charge of the business, affairs and
property of the corporation, and control over its officers, agents and employees and shall see that
all orders and resolutions of the board of directors are carried into effect. The chief operating
officer shall have such other powers and perform
such other duties as may be prescribed by the board of directors, the chief executive officer, the
president or as may be provided in these bylaws.
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Section 10. Vice-Presidents. The vice-president, if any, or if there shall
be more than one, the vice-presidents in the order determined by the board of directors, shall, in
the absence or disability of the president, act with all of the powers and be subject to all the
restrictions of the president. The vice-presidents shall also perform such other duties and have
such other powers as the board of directors, the chief executive officer, the president, the chief
operating officer or these bylaws may, from time to time, prescribe.
Section 11. The Secretary and Assistant Secretaries. The secretary, if any,
shall attend all meetings of the board of directors, all meetings of the committees thereof and all
meetings of the stockholders and record all the proceedings of the meetings in a book or books to
be kept for that purpose. Under the chief executive officers supervision, the secretary shall
give, or cause to be given, all notices required to be given by these bylaws or by law; and shall
have such powers and perform such duties as the board of directors, the chief executive officer,
the president, the chief operating officer or these bylaws may, from time to time, prescribe; and
shall have custody of the corporate seal of the corporation. The secretary, or an assistant
secretary, shall have authority to affix the corporate seal to any instrument requiring it and when
so affixed, it may be attested by his or her signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other officer to affix the
seal of the corporation and to attest the affixing by his or her signature. The assistant
secretary, or if there be more than one, the assistant secretaries in the order determined by the
board of directors, shall, in the absence or disability of the secretary, perform the duties and
exercise the powers of the secretary and shall perform such other duties and have such other powers
as the board of directors, the chief executive officer, the president, the chief operating officer
or secretary may, from time to time, prescribe.
Section 12. The Treasurer and Assistant Treasurer. The treasurer, if any,
shall have custody of the corporate funds and securities; shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation; shall deposit all monies and
other valuable effects in the name and to the credit of the corporation as may be ordered by the
board of directors; shall cause the funds of the corporation to be disbursed when such
disbursements have been duly authorized, taking proper vouchers for such disbursements; and shall
render to the chief executive officer and the board of directors, at its regular meeting or when
the board of directors so requires, an account of the corporation; and shall have such powers and
perform such duties as the board of directors, the chief executive officer, the president, the
chief operating officer or these bylaws may, from time to time, prescribe. If required by the
board of directors, the treasurer shall give the corporation a bond (which shall be rendered every
six years) in such sums and with such surety or sureties as shall be satisfactory to the board of
directors for the faithful performance of the duties of the office of treasurer and for the
restoration to the corporation, in case of death, resignation, retirement, or removal from office,
of all books, papers, vouchers, money, and other property of whatever kind in the possession or
under the control of the treasurer belonging to the corporation. The
assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order
determined by the board of directors, shall in the absence or disability of the treasurer, perform
the duties and exercise the powers of the treasurer. The assistant treasurers shall perform such
other duties and have such other powers as the board of directors, the chief executive officer, the
president, the chief operating officer or treasurer may, from time to time, prescribe.
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Section 13. Other Officers, Assistant Officers and Agents. Officers,
assistant officers and agents, if any, other than those whose duties are provided for in these
bylaws, shall have such authority and perform such duties as may from time to time be prescribed by
resolution of the board of directors.
Section 14. Absence or Disability of Officers. In the case of the absence or
disability of any officer of the corporation and of any person hereby authorized to act in such
officers place during such officers absence or disability, the board of directors may by
resolution delegate the powers and duties of such officer to any other officer or to any director,
or to any other person whom it may select.
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ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
Section 1. Nature of Indemnity. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a proceeding), by reason of the fact that
he or a person of whom he is the legal representative, is or was a director or officer, of the
corporation or is or was serving at the request of the corporation as a director, officer,
employee, fiduciary, or agent of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a director, officer, employee,
fiduciary or agent or in any other capacity while serving as a director, officer, employee,
fiduciary or agent, shall be indemnified and held harmless by the corporation to the fullest extent
which it is empowered to do so by the Nevada Revised Statutes, 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) against all expense, liability and loss (including attorneys
fees actually and reasonably incurred by such person in connection with such proceeding and such
indemnification shall inure to the benefit of his or her heirs, executors and administrators;
provided, however, that, except as provided in Section 2 hereof, the corporation shall indemnify
any such person seeking indemnification in connection with a proceeding initiated by such person
only if such proceeding was authorized by the board of directors of the corporation. The right to
indemnification conferred in this Article V shall be a contract right and, subject to Sections 2
and 5 of this Article V, shall include the right to be paid by the corporation the expenses
incurred in defending any such proceeding in advance of its final disposition. The corporation
may, by action of its board of directors, provide indemnification to employees and agents of the
corporation with the same scope and effect as the foregoing indemnification of directors and
officers.
Section 2. Procedure for Indemnification of Directors and Officers. Any
indemnification of a director or officer of the corporation under Section 1 of this Article V or
advance of expenses under Section 5 of this Article V shall be made promptly, and in any event
within 30 days, upon the written request of the director or officer. If a determination by the
corporation that the director or officer is entitled to indemnification pursuant to this Article V
is required, and the corporation fails to respond within 60 days to a written request for
indemnity, the corporation shall be deemed to have approved the request. If the corporation denies
a written request for indemnification or advancing of expenses, in whole or in part, or if payment
in full pursuant to such request is not made within 30 days, the right to indemnification or
advances as granted by this Article V shall be enforceable by the director or officer in any court
of competent jurisdiction. Such persons costs and expenses incurred in connection with
successfully establishing his or her right to indemnification, in whole or in part, in any such
action shall also be indemnified by the corporation. It shall be a defense to any
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such action
(other than an action brought to enforce a claim for expenses incurred in defending any proceeding
in advance of its final disposition where the required undertaking, if any, has been tendered to the
corporation) that the claimant has not met the standards of conduct which make it permissible under
the Nevada Revised Statutes for the corporation to indemnify the claimant for the amount claimed,
but the burden of such defense shall be on the corporation. 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 action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of conduct set forth
in the Nevada Revised Statutes, nor an actual determination by the corporation (including its board
of directors, independent legal counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
Section 3. Nonexclusivity of Article V. The rights to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its final disposition
conferred in this Article V shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the certificate of incorporation, bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 4. Insurance. The corporation may purchase and maintain insurance on
its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary,
or agent of the corporation 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 against any liability asserted against him or her and incurred by him or her in any such
capacity, whether or not the corporation would have the power to indemnify such person against such
liability under this Article V.
Section 5. Expenses. Expenses incurred by any person described in Section 1
of this Article V in defending a proceeding shall be paid by the corporation in advance of such
proceedings final disposition unless otherwise determined by the board of directors in the
specific case upon receipt of an undertaking by or on behalf of the director or officer to repay
such amount if it shall ultimately be determined that he or she is not entitled to be indemnified
by the corporation. Such expenses incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the board of directors deems appropriate.
Section 6. Employees and Agents. Persons who are not covered by the
foregoing provisions of this Article V and who are or were employees or agents of the corporation,
or who are or were serving at the request of the corporation as employees or agents of another
corporation, partnership, joint venture, trust or other enterprise, may be indemnified to the
extent authorized at any time or from time to time by the board of directors.
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Section 7. Contract Rights. The provisions of this Article V shall be deemed
to be a contract right between the corporation and each director or officer who serves in any
such capacity at any time while this Article V and the relevant provisions of the Nevada Revised
Statutes or other applicable law are in effect, and any repeal or modification of this Article V or
any such law shall not affect any rights or obligations then existing with respect to any state of
facts or proceeding then existing.
Section 8. Merger or Consolidation. For purposes of this Article V,
references to the corporation shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand in the same
position under this Article V with respect to the resulting or surviving corporation as he or she
would have with respect to such constituent corporation if its separate existence had continued.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Form. 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 chief executive officer, the president, the chief operating officer or a vice-president of the
corporation, certifying the number of shares owned by such holder in the corporation. If such a
certificate is countersigned (1) by a transfer agent or an assistant transfer agent other than the
corporation or its employee or (2) by a registrar, other than the corporation or its employee, the
signature of any such chairman of the board, chief executive officer, president, chief operating
officer, or vice-president may be facsimile. In case any officer or officers who have signed, or
whose facsimile signature or signatures have been used on, any such certificate or certificates
shall cease to be such officer or officers of the corporation whether because of death, resignation
or otherwise before such certificate or certificates have been delivered by the corporation, such
certificate or certificates may nevertheless be issued and delivered as though the person or
persons who signed such certificate or certificates or whose facsimile signature or signatures have
been used thereon had not ceased to be such officer or officers of the corporation. All
certificates for shares shall be consecutively numbered or otherwise identified. The name of the
person to whom the shares represented thereby are issued, with the number of shares and date of
issue, shall be entered on the books of the corporation. Shares of stock of the corporation shall
only be transferred on the books of the corporation by the holder of record thereof or by such
holders attorney duly authorized in writing, upon surrender to the corporation of the certificate
or certificates for such shares endorsed by the appropriate person or persons, with such evidence
of the authenticity of such endorsement, transfer, authorization, and other matters as the
corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In
that event, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate or certificates, and record the transaction
on its books. The board of directors may appoint a bank or trust company organized under the laws
of the United States or any state thereof to act as its transfer agent or registrar, or both in
connection with the transfer of any class or series of securities of the corporation.
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Section 2. Lost Certificates. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or certificates previously
issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or
destroyed. When authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen, or destroyed certificate or certificates, or his or her legal
representative, to give the corporation a bond sufficient to indemnify the corporation against any
claim that may be made against the corporation on account of the loss, theft or destruction of any
such certificate or the issuance of such new certificate.
Section 3. Fixing a Record Date for Stockholder Meetings. 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, the board of directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date is adopted by the
board of directors, and which record date shall not be more than 60 nor less than 10 days before
the date of such meeting. If no record date is fixed by the board of directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be
the close of business on the next day 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. 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.
Section 4. Fixing a Record Date for Action by Written Consent. In order that
the corporation may determine the stockholders entitled to consent to corporate action in writing
without a meeting, the board of directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by the board of
directors, and which date shall not be more than 10 days after the date upon which the resolution
fixing the record date is adopted by the board of directors. If no record date has been fixed by
the board of directors, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the board of directors is
required by statute, shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the corporation by delivery to its registered
office in the State of 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 corporations registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by the board of
directors and
prior action by the board of directors is required by statute, the record date for determining
stockholders entitled to consent to corporate action in writing without a meeting shall be at the
close of business on the day on which the board of directors adopts the resolution taking such
prior action.
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Section 5. Fixing a Record Date for Other Purposes. In order that the
corporation may determine the stockholders entitled to receive payment of any dividend or other
distribution or allotment or any rights or the stockholders entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for the purposes of any other lawful
action, the board of directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted, and which record date shall be not
more than 60 days prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business on the day on which
the board of directors adopts the resolution relating thereto.
Section 6. Subscriptions for Stock. Unless otherwise provided for in the
subscription agreement, subscriptions for shares shall be paid in full at such time, or in such
installments and at such times, as shall be determined by the board of directors. Any call made by
the board of directors for payment on subscriptions shall be uniform as to all shares of the same
class or as to all shares of the same series. In case of default in the payment of any installment
or call when such payment is due, the corporation may proceed to collect the amount due in the same
manner as any debt due the corporation.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be declared by the board
of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in
property, or in shares of the capital stock, subject to the provisions of the certificate of
incorporation. Before payment of any dividend, there may be set aside out of any funds of the
corporation available for dividends such sum or sums as the board of directors from time to time,
in its absolute discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the corporation, or any other
purpose and the board of directors may modify or abolish any such reserve in the manner in which it
was created.
Section 2. Checks, Drafts or Orders. All checks, drafts, or other orders for
the payment of money by or to the corporation and all notes and 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 be determined by resolution of the board of
directors or a duly authorized committee thereof.
Section 3. Contracts. The board of directors may authorize any officer or
officers, or any agent or agents, of the corporation to enter into any contract or to execute
and deliver any instrument in the name of and on behalf of the corporation, and such authority may
be general or confined to specific instances.
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Section 4. Loans. The corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the corporation or of its
subsidiary, including any officer or employee who is a director of the corporation or its
subsidiary, whenever, in the judgment of the board of directors, such loan, guaranty or assistance
may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may
be with or without interest, and may be unsecured, or secured in such manner as the board of
directors shall approve, including, without limitation, a pledge of shares of stock of the
corporation. Nothing in this section contained shall be deemed to deny, limit or restrict the
powers of guaranty or warranty of the corporation at common law or under any statute.
Section 5. Fiscal Year. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
Section 6. Corporate Seal. The board of directors may provide a corporate
seal which shall be in the form of a circle and shall have inscribed thereon the name of the
corporation and the words Corporate Seal, Nevada. The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 7. Voting Securities Owned By Corporation. Voting securities in any
other corporation held by the corporation shall be voted by the chief executive officer, unless the
board of directors specifically confers authority to vote with respect thereto, which authority may
be general or confined to specific instances, upon some other person or officer. Any person
authorized to vote securities shall have the power to appoint proxies, with general power of
substitution.
Section 8. Inspection of Books and Records. Any stockholder of record, in
person or by attorney or other agent, shall, upon written demand under oath stating the purpose
thereof, have the right during the usual hours for business to inspect for any proper purpose the
corporations stock ledger, a list of its stockholders, and its other books and records, and to
make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to
such persons interest as a stockholder. In every instance where an attorney or other agent shall
be the person who seeks the right to inspection, the demand under oath shall be accompanied by a
power of attorney or such other writing which authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the corporation at its
registered office in the State of Nevada or at its principal place of business.
Section 9. Section Headings. Section headings in these bylaws are for
convenience of reference only and shall not be given any substantive effect in limiting or
otherwise construing any provision herein.
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Section 10. Inconsistent Provisions. In the event that any provision of
these bylaws is or becomes inconsistent with any provision of the certificate of incorporation, the
Nevada Revised Statutes or any other applicable law, the provision of these bylaws shall not be
given any effect to the extent of such inconsistency but shall otherwise be given full force and
effect.
ARTICLE VIII
AMENDMENTS
These bylaws may be amended, altered, or repealed and new bylaws adopted at any meeting of the
board of directors by a majority vote. The fact that the power to adopt, amend, alter, or repeal
the bylaws has been conferred upon the board of directors shall not divest the stockholders of the
same powers.
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CERTIFICATE
The undersigned hereby certifies that the undersigned is the duly elected,
qualified, acting and hereunto authorized secretary of the corporation and that the foregoing and
annexed bylaws constitute a true and complete copy of the bylaws of said corporation presently in
full force and effect.
IN WITNESS WHEREOF, the undersigned has signed this certificate dated as of April 29, 2011.
/s/ Patrick Avery | ||||
Patrick Avery, Secretary |
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