BYLAWS
OF
ABRAXAS
PETROLEUM CORPORATION,
a Nevada
Corporation
(November
12, 2008)
ARTICLE
I
OFFICES
Section
1.
Principal Office and
Registered Agent
. The principal office of the Corporation in
the state of Nevada shall be at One East First Street, Reno, Washoe County,
Nevada 89501. The name and address of the registered agent is the
Corporation Trust Company of Nevada, One East First Street, Reno, Washoe County,
Nevada 89501.
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
STOCKHOLDERS
Section
1.
Place of
Meeting
. All meetings of the stockholders shall be held at the
principal office of the Corporation, or at such other place within or without
the State of Nevada as shall be specified or fixed in the notices or waivers of
notice thereof.
Section
2.
Quorum, Adjournment of
Meeting
. Unless otherwise required by law or provided in the
Articles of Incorporation or these Bylaws, the holders of a majority of the
stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at any meeting of stockholders
for the transaction of business and the act of a majority of such stock so
represented at any meeting of stockholders at which a quorum is present shall
constitute the act of the stockholders. The stockholders present at a
duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
Notwithstanding
the other provisions of the Articles of Incorporation or these Bylaws, the
chairman of the meeting or the holders of a majority of the issued and
outstanding stock, present
in person
or represented by proxy, at any meeting of stockholders, whether or not a quorum
is present, shall have the power to adjourn such meeting from time to time,
without any notice other than announcement at the meeting of the time and place
of the holding of the adjourned meeting. If the adjournment is for
more than thirty (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 such
meeting. At such adjourned meeting at which a quorum shall be present
or represented any business may be transacted which might have been transacted
at the meeting as originally called.
Section
3.
Annual
Meetings
. An annual meeting of the stockholders, for the
election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, within or without the State of Nevada, on such
date, and at such time as the Board of Directors shall fix and set forth in the
notice of the meeting.
Section
4.
Special
Meetings
. Special meetings of stockholders of the Corporation
may be called only by the Chairman of the Board, the President or the Board of
Directors pursuant to a resolution approved by a majority of the entire Board of
Directors of the Corporation (as determined in accordance with the Bylaws of the
Corporation). Notwithstanding anything contained in the Articles of
Incorporation or Bylaws of the Corporation to the contrary, the affirmative vote
of the holders of at least 80% of the voting power of the then outstanding
shares of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to amend or
repeal this Section 4
or adopt any
provision inconsistent with any provision of this Section 4
.
Section
5.
Record
Date
. For the purpose of determining stockholders entitled to
notice of or to vote at any meeting of stockholders, or any adjournment thereof,
or entitled to express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors of the Corporation may fix in advance, a date as
the record date for any such determination of stockholders, which date shall not
be more than sixty (60) days nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action.
If the Board of Directors does not fix a record date for
any meeting of the stockholders, the record date for determining stockholders
entitled to notice of or to vote at such meeting shall be at the close of
business on the day next preceding the day on which notice is given, or, if in
accordance with Article VIII, Section 3
of these Bylaws, notice is waived, at the close of
business on the day next preceding the day on which the meeting is
held. If, in accordance with Section 12
of this Article II
,
corporate action without a meeting of stockholders is to be taken, the record
date for determining stockholders entitled to express consent to such corporate
action in writing, when no prior action by the Board of Directors is necessary,
shall be the day on which the first written consent is expressed. The
record date for determining stockholders for any other purpose shall be at the
close of business on the date on which the Board of Directors adopts the
resolution relating thereto.
A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section
6.
Notice of
Meetings
. Written notice signed by the President, Vice
President, Secretary, or Assistant Secretary, or other persons as the President
or Board of Directors may designate, of the place, date and hour of all
meetings, and, in case of a special meeting, the purpose or purposes for which
the meeting is called, shall be given by or at the direction of the Chairman of
the Board or the President, the Secretary or the other person(s) calling the
meeting to each stockholder entitled to vote thereat not less than ten (10) nor
more than sixty (60) days before the date of the meeting. Such notice
may be delivered either personally or by mail. If mailed, notice is
given when deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the
Corporation.
Section
7.
Stock
List
. A complete list of stockholders entitled to vote at any
meeting of stockholders, arranged in alphabetical order for each class of stock
and showing the address of each such stockholder and the number of shares
registered in the name of such stockholder, 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 ten (10) days prior to the meeting,
either at the offices of the Corporation in San Antonio, Texas or 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 stock 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
8.
Proxies
. Each
stockholder entitled to vote at a meeting of stockholders or to express consent
or dissent to a corporate action in writing without a meeting may authorize
another person or persons to act for him by proxy. Proxies for use at
any meeting of stockholders shall be in writing and filed with the Secretary, or
such other officer as the Board of Directors may from time to time determine by
resolution, before or at the time of the meeting. All proxies shall
be received and taken charge of and all ballots shall be received and canvassed
by the secretary of the meeting who shall decide all questions touching upon the
qualification of voters, the validity of the proxies and the acceptance or
rejection of votes, unless an inspector or inspectors shall have been appointed
by the chairman of the meeting, in which event such inspector or inspectors
shall decide all such questions.
No proxy
shall be valid after six (6) months from its date, unless the proxy provides for
a longer period, which in no event may exceed seven (7) years. Each
proxy shall be revocable unless expressly provided therein to be irrevocable and
coupled with an interest sufficient in law to support an irrevocable
power.
Should a
proxy designate two or more persons to act as proxies, unless such instrument
shall provide the contrary, a majority of such persons present at any meeting at
which their powers thereunder are to be exercised shall have and may exercise
all the powers of voting or giving consents thereby conferred, or if only one be
present, then such powers may be exercised by that one; or, if an even number
attend and a majority do not agree on any particular issue, each proxy so
attending shall be entitled to exercise such powers in respect of the same
portion of the shares as he is of the proxies representing such
shares.
Section
9.
Voting, Elections;
Inspections
. Unless otherwise required by law or provided in
the Articles of Incorporation, each stockholder shall have one vote for each
share of stock entitled to vote which is registered in his name on the record
date for the meeting. Shares registered in the name of another
corporation, domestic or foreign, may be voted by such officer,
agent or
proxy as the bylaw (or comparable instrument) of such corporation may prescribe,
or in the absence of such provision, as the Board of Directors (or comparable
body) of such corporation may determine. Shares registered in the
name of a deceased person may be voted by his executor or administrator, either
in person or by proxy.
All
voting, except as required by the Articles of Incorporation or where otherwise
required by law, may be by a voice vote; provided, however, that upon demand
therefor by stockholders holding a majority of the issued and outstanding stock
present in person or by proxy at any meeting a stock vote shall be
taken. Every stock vote shall be taken by written ballots, each of
which shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the
meeting. All elections of directors shall be by ballot, unless
otherwise provided in the Articles of Incorporation.
At any
meeting at which a vote is taken by ballots, the chairman of the meeting may
appoint one or more inspectors, each of whom shall subscribe an oath or
affirmation to execute faithfully the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. Such
inspector shall receive the ballots, count the votes and make and sign a
certificate of the result thereof. The chairman of the meeting may
appoint any person to serve as inspector, except no candidate for the office of
director shall be appointed as an inspector.
Unless
otherwise provided in the Articles of Incorporation, cumulative voting for the
election of directors shall be prohibited.
Section
10.
Conduct of
Meetings
. The meetings of the stockholders shall be presided
over by the Chairman of the Board, or if he is not present, by the President, or
if neither the Chairman of the Board nor the President is present, by a chairman
elected at the meeting. The Secretary of the Corporation, if present,
shall act as secretary of such meetings, or if he is not present, an Assistant
Secretary shall so act; if neither the Secretary nor an Assistant Secretary is
present, then a secretary shall be appointed by the chairman of the
meeting. The chairman of any meeting of stockholders shall determine
the order of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of discussion as seem to him
in order.
Section
11.
Treasury
Stock
. The Corporation shall not vote, directly or indirectly,
shares of its own stock owned by it and such shares shall not be counted for
quorum purposes.
Section
12.
Action Without
Meeting
. Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at an annual or special meeting
of stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders. Notwithstanding anything contained in
the Articles of Incorporation or Bylaws of the Corporation to the contrary, the
affirmative vote of the holders of at least 80% of the voting power of the then
outstanding shares of the Corporation entitled to vote generally in the election
of directors, voting together as a single class, shall be required to amend or
repeal this Section 12 or adopt any provision inconsistent with any provision of
this Section 12.
Section
13.
Nominations and Business at
Stockholder Meetings
.
(A)
Annual Meetings of
Stockholders
. (1) Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of other
business to be considered by the stockholders may be made at an annual meeting
of stockholders (a) pursuant to the Corporation’s
notice of
meeting, (b) by or at the direction of the Board of Directors or (c) by any
stockholder of the Corporation (i) who was a stockholder of record at the time
of giving of notice provided for in this Section 13, and at the time of the
annual meeting, (ii) is entitled to vote at the meeting and (iii) complies with
the notice procedures set forth in this Section 13 as to such business or
nomination.
(2) Without
qualification, for any nominations or any other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of paragraph
(A)(0) of this Section 13, the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation and such other business must
otherwise be a proper matter for stockholder action. To be timely, a
stockholder’s notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
60th day nor earlier than the close of business on the 90th day prior to the
first anniversary of the preceding year’s annual meeting; provided, however,
that in the event that the date of the annual meeting is more than 30 days
before or more than 60 days after such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the close of
business on the 90th day prior to such annual meeting and not later than the
close of business on the later of the 60th day prior to such annual meeting or
the 10th day following the day on which public announcement of the date of such
meeting is first made by the Corporation. In no event shall the
public announcement of an adjournment or postponement of an annual meeting
commence a new time period for the giving of a stockholder’s notice as described
above. .
(3) To
be in proper form, a stockholder’s notice (whether given pursuant to paragraph
A(1) above or paragraph B below) to the Secretary must:
(a) set
forth, as to the stockholder giving the notice and the beneficial owner, if any,
on whose behalf the nomination or proposal is made (i) the name and address of
such stockholder, as they appear on the Corporation’s books, and of such
beneficial owner, if any, (ii) (A) the class or series and number of shares of
the Corporation which are, directly or indirectly, owned beneficially and of
record by such stockholder and such beneficial owner, (B) any option, warrant,
convertible security, stock appreciation right, or similar right with an
exercise or conversion privilege or a settlement payment or mechanism at a price
related to any class or series of shares of the Corporation or with a value
derived in whole or in part from the value of any class or series of shares of
the Corporation, whether or not such instrument or right shall be subject to
settlement in the underlying class or series of capital stock of the Corporation
or otherwise (a “Derivative Instrument”) directly or indirectly owned
beneficially by such stockholder and any other direct or indirect opportunity to
profit or share in any profit derived from any increase or decrease in the value
of shares of the Corporation, (C) any proxy, contract, arrangement,
understanding, or relationship pursuant to which such stockholder has a right to
vote any shares of any security of the Company, (D) any short interest in any
security of the Company (for purposes of this Section 13, a person shall be
deemed to have a short interest in a security if such person, directly or
indirectly, through any contract, arrangement, understanding, relationship or
otherwise, has the opportunity to profit or share in any profit derived from any
decrease in the value of the subject security), (E) any rights to dividends on
the shares of the Corporation owned beneficially by such stockholder that are
separated or separable from the underlying shares of the Corporation, (F) any
proportionate interest in shares of the Corporation or Derivative Instruments
held, directly or indirectly, by a general or limited partnership in which such
stockholder is a general partner or, directly or indirectly, beneficially owns
an interest in a general partner
and (G)
any performance-related fees (other than an asset-based fee) that such
stockholder is entitled to based on any increase or decrease in the value of
shares of the Corporation or Derivative Instruments, if any, as of the date of
such notice including, without limitation, any such interests held by members of
such stockholder’s immediate family sharing the same household (which
information shall be supplemented by such stockholder and beneficial owner, if
any, not later than 10 days after the record date for the meeting to disclose
such ownership as of the record date), and (iii) any other information relating
to such stockholder and beneficial owner, if any, 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, as applicable, the proposal and/or
for the election of directors in a contested election pursuant to Section 14 of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the
rules and regulations promulgated thereunder;
(b) if
the notice relates to any business other than a nomination of a director or
directors that the stockholder proposes to bring before the meeting, set forth
(i) a brief description of the business desired to be brought before the
meeting, the reasons for conducting such business at the meeting and any
material interest of such stockholder and beneficial owner, if any, in such
business and (ii) a description of all agreements, arrangements and
understandings between such stockholder and beneficial owner, if any, and any
other person or persons (including their names) in connection with the proposal
of such business by such stockholder;
(c) set
forth, as to each person, if any, whom the stockholder proposes to nominate for
election or reelection to the Board of Directors (i) all information relating to
such 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 in a contested election pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder (including
such person’s written consent to being named in the proxy statement as a nominee
and to serving as a director if elected) and (ii) a description of all direct
and indirect compensation and other material monetary agreements, arrangements
and understandings during the past three years, and any other material
relationships, between or among such stockholder and beneficial owner, if any,
and their respective affiliates and associates, or others acting in concert
therewith, on the one hand, and each proposed nominee, and his or her respective
affiliates and associates, or others acting in concert therewith, on the other
hand, including, without limitation all information that would be required to be
disclosed pursuant to Rule 404 promulgated under Regulation S-K (or any
successor rule) if the stockholder making the nomination and any beneficial
owner on whose behalf the nomination is made, if any, or any affiliate or
associate thereof or person acting in concert therewith, were the “registrant”
for purposes of such rule and the nominee were a director or executive officer
of such registrant; and
(d) with
respect to each nominee for election or reelection to the Board of Directors,
include a completed, dated and signed questionnaire, representation and
agreement and any other information required by paragraph (D)
below.
(4) Notwithstanding
anything in the second sentence of paragraph (A)(2) of this Section 13 to the
contrary, in the event that the number of directors to be elected to the Board
of Directors of the Corporation is increased and there is no public announcement
by the Corporation naming all of the nominees for director or specifying the
size of the increased Board
of
Directors at least 70 days prior to the first anniversary of the preceding
year’s annual meeting, a stockholder’s notice required by this Section 13 shall
also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary at
the principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the Corporation.
(B)
Special Meetings of
Stockholders
. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting
pursuant to the Corporation’s notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of stockholders at which directors are to be elected pursuant to the
Corporation’s notice of meeting (1) by or at the direction of the Board of
Directors or (2) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who (a) is a stockholder of record at the time of giving of notice
provided for in this Section 13, (b) is entitled to vote at the meeting, and (c)
complies with the notice procedures set forth in this Section 13 as to such
nomination. In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board of
Directors, any such stockholder may nominate a person or persons (as the case
may be), for election to such position(s) as specified in the Corporation’s
notice of meeting, if the stockholder’s notice required by paragraph (A)(2) of
this Section 13 with respect to any nomination (including the completed
and signed questionnaire, representation and agreement required by paragraph D
below) shall be delivered to the Secretary at the principal executive offices of
the Corporation not earlier than the close of business on the 90th day prior to
the date of such special meeting and not later than the close of business on the
later of the 60th day prior to the date of such special meeting or, if the first
public announcement of the date of such special meeting is less than 70 days
prior to the date of such special meeting, the 10th day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board of Directors to be elected at such
meeting. In no event shall the public announcement of an adjournment
or postponement of a special meeting commence a new time period for the giving
of a stockholder’s notice as described above.
(C)
General
. (2)
Only such persons who are nominated in accordance with the procedures set forth
in this Section 13 shall be eligible to serve as directors and only such
other business shall be conducted at a meeting of stockholders as shall have
been brought before the meeting in accordance with the procedures set forth in
this Section 13 . Except as otherwise provided by law, the Articles
of Incorporation or these Bylaws, the Chairman of the meeting shall have the
power and duty to determine whether a nomination or any other business proposed
to be brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Section 13, and, if any
proposed nomination or business is not in compliance with this Section 13 , to
declare that such defective proposal or nomination shall be
disregarded.
(2) For
purposes of this Section 13, “public announcement” shall mean disclosure in a
press release reported by a national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations
promulgated thereunder.
(3) Notwithstanding
the foregoing provisions of this Section 13, 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 in this Section 13;
provided, however, that any
reference
in these Bylaws to the Exchange Act or the rules and regulations promulgated
thereunder are not intended to and shall not limit the requirements applicable
to nominations or proposals as to any other business to be considered pursuant
to paragraph (A)(1)(c) or paragraph (B) of this Section 13. Nothing
in this Section 13 shall be deemed to affect any rights (i) of
stockholders to request inclusion of proposals in the Corporation’s proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders
of any series of Preferred Stock if and to the extent provided for under law,
the Articles of Incorporation or these Bylaws.
(D)
Submission of Questionnaire,
Representation and Agreement; Other Information
. To be
eligible to be a nominee for election or reelection as a director of the
Corporation, a person must deliver (in accordance with the time periods
prescribed for delivery of notice under Section 13) to the Secretary at the
principal executive offices of the Corporation a written questionnaire with
respect to the background and qualification of such person and the background of
any other person or entity on whose behalf the nomination is being made (which
questionnaire shall be provided by the Secretary upon written request) and a
written representation and agreement (in the form provided by the Secretary upon
written request) that such person (1) is not and will not become a party to (a)
any agreement, arrangement or understanding with, and has not given any
commitment or assurance to, any person or entity as to how such person, if
elected as a director of the Corporation, will act or vote on any issue or
question (a “Voting Commitment”) that has not been disclosed to the Corporation
or (b) any Voting Commitment that could limit or interfere with such person’s
ability to comply, if elected as a director of the Corporation, with such
person’s fiduciary duties under applicable law, (2) is not and will not become a
party to any agreement, arrangement or understanding with any person or entity
other than the Corporation with respect to any direct or indirect compensation,
reimbursement or indemnification in connection with service or action as a
director that has not been disclosed therein, and (3) in such person’s
individual capacity and on behalf of any person or entity on whose behalf the
nomination is being made, would be in compliance, if elected as a director of
the Corporation, and will comply with all applicable publicly disclosed
corporate governance, conflict of interest, confidentiality and stock ownership
and trading policies and guidelines of the Corporation. The
Corporation may also require any proposed nominee to furnish such other
information as may reasonably be required by the Corporation to determine the
eligibility of such proposed nominee to serve as an independent director of the
Corporation or that could be material to a reasonable stockholder’s
understanding of the independence, or lack thereof, of such
nominee.
(E)
Amendment
. Notwithstanding
any other provisions of the Articles of Incorporation or the Bylaws of the
Corporation (and notwithstanding the fact that a lesser percentage may be
specified by law, the Articles of Incorporation or the Bylaws of the
Corporation), the affirmative vote of the holders of at least 80% of the voting
power of the then outstanding shares of the Corporation, voting together as a
single class, shall be required to alter, amend, repeal or adopt any provision
inconsistent with this Section 13.
ARTICLE
III
BOARD OF
DIRECTORS
Section
1. (a)
Number, Election and Terms
of Directors
. The business and affairs of the Corporation
shall be managed by a Board of Directors which shall consist of not less than
three (3) nor more than twelve (12) persons, who need not be residents of the
State of Nevada or stockholders of the Corporation. The exact number
of directors within the minimum and maximum limitations specified in the
preceding sentence shall be fixed from time to time by the
Board of
Directors pursuant to a resolution adopted by a majority of the entire Board of
Directors. The directors shall be divided into three classes, as
nearly equal in number as possible, with the term of office of the first class
to expire at the 1996 Annual Meeting of Stockholders, the term of office of the
second class to expire at the 1997 Annual Meeting of Stockholders and the term
of office of the third class to expire at the 1998 Annual Meeting of
Stockholders. At each Annual Meeting of Stockholders following such
initial classification and election, directors elected to succeed those
directors whose terms expire shall be elected for a term of office to expire at
the third succeeding Annual Meeting of Stockholders after their
election.
(b)
Newly Created
Directorships
. A directorship to be filled by reason of any
increase in the number of directors may be filled (i) by election at an annual
or special meeting of stockholders called for that purpose or (ii) by the Board
of Directors for a term of office continuing only until the next election of one
or more directors by the stockholders- provided that the Board of Directors may
not fill more than two such directorships during the period between any two
successive annual meetings of stockholders.
(c)
Vacancies in the Board of
Directors
. Any vacancies in the Board of Directors resulting
from death, resignation, retirement, disqualification, removal from office or
other cause shall be filled by a majority vote of the directors then in office,
and directors so chosen shall hold office for a term expiring at the annual
meeting of stockholders at which the term of the class to which they have been
elected expires. No decrease in the number of directors constituting
the Board of Directors shall shorten the term of any incumbent
director.
(d)
Removal of
Directors
. Any director, or the entire Board of Directors, may
be removed from office at any time, but only for cause and only by the
affirmative vote of the holders of at least 80% of the voting power of the then
outstanding shares of the Corporation entitled to vote generally in the election
of directors, voting together as a single class.
(e)
Amendment, Repeal,
etc
. Notwithstanding any other provisions of the Articles of
Incorporation or the Bylaws of the Corporation (and notwithstanding the fact
that a lesser percentage may be specified by law, the Articles of Incorporation
or the Bylaws of the Corporation), the affirmative vote of the holders of at
least 80% of the voting power of the then outstanding shares of the Corporation,
voting together as a single class, shall be required to alter, amend, repeal or
adopt any provision inconsistent with this Section 1.
Section
2.
Quorum
. Unless
otherwise provided in the Articles of Incorporation, a majority of the total
number of directors shall constitute a quorum for the transaction of business of
the Board of Directors and the vote of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of
Directors.
Section
3.
Place of Meetings, Order of
Business
. The directors may hold their meetings and may have
an office and keep the books of the Corporation, except as otherwise provided by
law, in such place or places, within or without the State of Nevada, as the
Board of Directors may from time to time determine by resolution. The
meetings of the Board of Directors shall be presided over by the Chairman of the
Board, or if he is not present, by the
President,
and the business of the meeting shall be transacted in such order as shall from
time to time be determined by the Chairman of the Board, or in his absence, by
the President, or by resolution of the Board of Directors.
Section
4.
First
Meeting
. Each newly elected Board of Directors may hold its
first meeting for the purpose of organization and the transaction of business,
if a quorum is present, immediately after and at the same place as the annual
meeting of the stockholders. Notice of such meeting shall not be
required. At the first meeting of the Board of Directors in each year
at which a quorum shall be present, held next after the annual meeting of
stockholders, the Board of Directors shall proceed to the election of the
officers of the Corporation.
Section
5.
Regular
Meetings
. Regular meetings of the Board of Directors shall be
held at such times and places as shall be designated from time to time by
resolution of the Board of Directors. Notice of such regular meetings
shall not be required.
Section
6.
Special
Meetings
. Special meetings of the Board of Directors may be
called by the Chairman of the Board, the President or on the written request of
any two directors, by the Secretary, in each case on at least twenty-four (24)
hours personal, written, telegraphic, cable or wireless notice to each
director. Such notice, or any waiver thereof pursuant to Article
VIII, Section 3 hereof, need not state the purpose or purposes of such meeting,
except as may otherwise be required by law or provided for in the Articles of
Incorporation or these Bylaws.
Section
7.
Compensation
. Unless
otherwise restricted by the Articles of Incorporation, the Board of Directors
shall have the authority to fix the compensation of directors.
Section
8.
Action Without a Meeting;
Telephone Conference Meeting
. Unless otherwise restricted by
the Articles of Incorporation, any action required or permitted to be taken at
any meeting of the Board of Directors, or any committee designated by the Board
of Directors, may be taken without a meeting if all members of the Board of
Directors or committee, as the case may be, either originally or in
counterparts, consent thereto in writing. Such consent shall have the
same force and effect as a unanimous vote at a meeting, and may be stated as
such in any document or instrument filed with the Secretary of State of
Nevada.
Unless
otherwise restricted by the Articles of Incorporation, subject to the
requirement for notice of meetings, members of the Board of Directors, or
members of any committee designated by the Board of Directors, may participate
in a meeting of such Board of Directors or committee, as the case may be, by
means of a conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in such a meeting shall constitute presence in person at such
meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the grounds that the
meeting is not lawfully called or convened.
Section
9.
Approval or Ratification of
Acts or Contracts by Stockholders
. The Board of Directors in
its discretion may submit any act or contract for approval or ratification at
any annual meeting of the stockholders, or at any special meeting of the
stockholders called for the purpose of considering any such act or contract, and
any act or contract that shall be approved or be ratified by the vote of the
stockholders holding a majority of the issued and outstanding shares of stock of
the Corporation entitled to vote and present in person or by proxy at such
meeting
(provided
that a quorum is present), shall be as valid and as binding upon the Corporation
and upon all the stockholders as if it has been approved or ratified by every
stockholder of the Corporation. In addition, any such act or contract
may be approved or ratified by the written consent of stockholders holding a
majority of the issued and outstanding shares of capital stock of the
Corporation entitled to vote and such consent shall be as valid and as binding
upon the Corporation and upon all the stockholders as if it had been approved or
ratified by every stockholder of the Corporation.
ARTICLE
IV
COMMITTEES
Section
1.
Designation;
Powers
. The Board of Directors may, by resolution passed by a
majority of the whole board, designate one or more committees, including, if
they shall so determine, an executive committee, each such committee to consist
of one or more of the directors of the Corporation. Any such
designated committee shall have and may exercise such of the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation as may be provided in such resolution, except that no
such Committee shall have the power or authority of the Board of Directors in
reference to amending the Articles of Incorporation, adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation’s property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution of the Corporation, or amending, altering or
repealing the Bylaws or adopting new Bylaws for the Corporation and, unless such
resolution or the Articles of Incorporation expressly so provides, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Any such designated committee may
authorize the seal of the Corporation to be affixed to all papers which may
require it. In addition to the above, such committee or committees
shall have such other powers and limitations of authority as may be determined
from time to time by resolution adopted by the Board of Directors.
Section
2.
Procedure; Meetings,
Quorum
. Any committee designated pursuant to Section 1 of this
Article shall choose its own chairman, shall keep regular minutes of its
proceedings and report the same to the Board of Directors when requested, shall
fix its own rules or procedures, and shall meet at such times and at such place
or places as may be provided by such rules, or by resolution of such committee
or resolution of the Board of Directors. At every meeting of any such
committee, the presence of a majority of all the members thereof shall
constitute a quorum and the affirmative vote of a majority of the members
present shall be necessary for the adoption by it of any
resolution.
Section
3.
Substitution of
Members
. 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 such committee. In the absence
or disqualification of a member of a committee, the member or members present at
any meeting and not disqualified from voting, whether or not constituting a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of the absent or disqualified member.
Article
V
OFFICERS
Section
1.
Number, Titles and Term of
Office
. The officers of the Corporation shall be a President,
one or more Vice Presidents (any one or more of whom may be designated Executive
Vice President or Senior Vice President), a Treasurer, a Secretary, a Registered
Agent and, if the Board of Directors so elects, a Chairman of the Board and such
other officers as the Board of Directors may from time to time elect or
appoint. Each officer shall hold office until his successor shall be
duly elected and shall qualify or until his death or until he shall resign or
shall have been removed in the manner hereinafter provided. Any
number of offices may be held by the same person, unless the Articles of
Incorporation provides otherwise. Except for the Chairman of the
Board, if any, no officers need be a director.
Section
2.
Salaries
. The
salaries or other compensation of the officers and agents of the Corporation
shall be fixed from time to time by the Board of Directors.
Section
3.
Removal
. Any
officer or agent elected or appointed by the Board of Directors may be removed,
either with or without cause, by the vote of a majority of the whole Board of
Directors at a special meeting called for the purpose, or at any regular meeting
of the Board of Directors, provided the notice for such meeting shall specify
that the matter of any such proposed removal will be considered at the meeting
but such removal shall be without prejudice to the contract rights, if any, of
the person so removed. Election or appointment of an officer or agent
shall not of itself create contract rights.
Section
4.
Vacancies
. Any
vacancy occurring in any office of the Corporation may be filled by the Board of
Directors.
Section
5.
Powers and Duties of the
Chief Executive Officer
. The President shall be the chief
executive officer of the Corporation unless the Board of Directors designates
the Chairman of the Board as chief executive officer. Subject to the
control of the Board of Directors and the executive committee (if any), the
chief executive officer shall have general executive charge, management and
control of the properties, business and operations of the Corporation with all
such powers as may be reasonably incident to such responsibilities; he may agree
upon and execute all leases, contracts, evidences of indebtedness and other
obligations in the name of the Corporation and may sign all certificates for
shares of capital stock of the Corporation and shall have such other powers and
duties as designated in accordance with these Bylaws and as from time to time
may be assigned to him by the Board of Directors.
Section
6.
Powers and Duties of the
Chairman of the Board
. The Chairman of the Board shall have no
administrative duties relating to the Corporation or its property and he shall
act as a consultant and advisor to the President. The Chairman of the
Board shall preside when present at meetings of the stockholders and the Board
of Directors. In addition, he shall exercise such other powers and
perform such other duties as may be assigned to him from time to time by the
Board of Directors or as may be prescribed by the Bylaws.
Section
7.
Powers and Duties of the
President
. Unless the Board of Directors otherwise determines,
the President shall have the authority to agree upon and execute all leases,
contracts, evidences of indebtedness and other obligations in the name of the
Corporation; and he
shall
have such other powers and duties as designated in accordance with these Bylaws
and as from time to time may be assigned to him by the Board of
Directors.
Section
8.
Vice
Presidents
. In the absence of the President, or in the event
of his inability or refusal to act, a Vice President designated by the Board of
Directors shall perform the duties of the President, and when so acting shall
have all the powers of and be subject to all the restrictions of the
President. In the absence of a designation by the Board of Directors
of a Vice President to perform the duties of the President, or in the event of
his absence or inability or refusal to act, the Vice President who is present
and who is senior in terms of time as a Vice President of the Corporation shall
so act. The Vice Presidents shall perform such other duties and have
such other powers as the chief executive officer or the Board of Directors may
from time to time prescribe.
Section
9.
Treasurer
. The
Treasurer shall have responsibility for the custody and control of all the funds
and securities of the Corporation, and he shall have such other powers and
duties as designated in these Bylaws and as from time to time may be assigned to
him by the Board of Directors. He shall perform all acts incident to
the position of Treasurer, subject to the control of the chief executive officer
and the Board of Directors; and he shall, if required by the Board of Directors,
give such bond for the faithful discharge of his duties in such form as the
Board of Directors may require.
Section
10.
Assistant
Treasurers
. Each Assistant Treasurer shall have the usual
powers and duties pertaining to his office, together with such other powers and
duties as designated in these Bylaws and as from time to time may be assigned to
him by the chief executive officer or the Board of Directors. The
Assistant Treasurers shall exercise the powers of the Treasurer during that
officer’s absence or inability or refusal to act.
Section
11.
Secretary
. The
Secretary shall keep the minutes of all meetings of the Board of Directors,
committees of directors and the stockholders, in books provided for that
purpose; he shall attend to the giving and serving of all notices; he may in the
name of the Corporation affix the seal of the Corporation to all contracts of
the Corporation and attest the affixation of the seal of the Corporation
thereto; he may sign with the other appointed officers all certificates for
shares of capital stock of the Corporation; he shall have charge of the
certificate books, transfer books and stock ledgers, and such other books and
papers as the Board of Directors may direct, all of which shall at all
reasonable times be open to inspection of any director upon application at the
office of the Corporation during business hours; he shall have such other powers
and duties as designated in these Bylaws and as from time to time may be
assigned to him by the Board of Directors; and he shall in general perform all
acts incident to the office of Secretary, subject to the control of the chief
executive officer and the Board of Directors.
Section
12.
Assistant
Secretaries
. Each Assistant Secretary shall have the usual
powers and duties pertaining to his office, together with such other powers and
duties as designated in these Bylaws and as from time to time may be assigned to
him by the chief executive officer or the Board of Directors. The
Assistant Secretaries shall exercise the powers of the Secretary during that
officer’s absence or inability or refusal to act.
Section
13.
Resident
Agent
. The Resident Agent shall be either a natural person or
a corporation, resident or located in the State of Nevada. Along with
all other powers authorized
by law,
the Articles of Incorporation or these Bylaws the Registered Agent may accept
legal process, demand or notice authorized by law to be served upon the
Corporation.
Section
14.
Action with Respect to
Securities of Other Corporations
. Unless otherwise directed by
the Board of Directors, the chief executive officer shall have the power to vote
and otherwise act on behalf of the Corporation, in person or by proxy, at any
meeting of security holders of or with respect to any action of security holders
of any other corporation in which this Corporation may hold securities and
otherwise to exercise any and all rights and powers which this Corporation may
possess by reason of its ownership of securities in such other
corporations.
ARTICLE
VI
INDEMNIFICATION
OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
Section
1. To
the fullest extent allowed by Nevada law, any director of the Corporation shall
not be liable to the corporation or its shareholders for monetary damages for an
act or omission in the director’s capacity as a director, except that this
Article V does not eliminate or limit the liability of a director
for:
(a) an
act or omission which involves intentional misconduct, fraud or a knowing
violation of law; or
(b) the
payment of dividends in violation of N.R.S. 78.300.
Section
2. The
Corporation shall indemnify each director, officer, agent and employee, now or
hereafter serving the Corporation, each former director, officer, agent and
employee, and each person who may now or hereafter serve or who may have
heretofore served at the Corporation’s request as a director, officer, agent or
employee of another corporation or other business enterprise, and the respective
heirs, executors, administrators and personal representatives of each of them
against all expenses actually and reasonably incurred by, or imposed upon, him
in connection with the defense of any claim, action, suit or proceeding, civil
or criminal against him by reason of his being or having been such director,
officer, agent or employee, except in relation to such matters as to which he
shall be adjudged by a court of competent jurisdiction after exhaustion of all
appeals therefrom in such action, suit or proceedings to be liable for gross
negligence or willful misconduct in the performance of duty. For
purposes hereof, the term “expenses” shall include but not be limited to all
expenses, costs, attorneys’ fees, judgments (including adjudications other than
on the merits), fines, penalties, arbitration awards, costs of arbitration and
sums paid out and liabilities actually and reasonably incurred or imposed in
connection with any suit, claim, action or proceeding, and any settlement or
compromise thereof approved by the Board of Directors as being in the best
interests of the Corporation. However, in any case in which there is
no disinterested majority of the Board of Directors available, the
indemnification shall be made: (1) only if the Corporation shall be advised in
writing by counsel that in the opinion of counsel (a) such officer, director,
agent or employee was not adjudged or found liable for gross negligence or
willful misconduct in the performance of duty as such director, officer, agent
or employee or the indemnification provided is only in connection with such
matters as to which the person to be indemnified was not so liable, and in the
case of settlement or compromise, the same is in the best interests of the
Corporation; and (b) indemnification under the circumstances is lawful and falls
within the provisions of these Bylaws and (2) only in such amount as counsel
shall advise the Corporation
in
writing is, in his opinion, proper. In making or refusing to make any
payment under this or any other provisions of these Bylaws, the Corporation, its
directors, officers, employees and agents shall be fully protected if they rely
upon the written opinion of counsel selected by, or in the manner designated by,
the Board of Directors.
Section
3. Expenses
incurred in defending a civil or criminal action, suit or proceeding may be paid
by the Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount unless
it shall ultimately be determined that he is entitled to be indemnified by the
Corporation as authorized in these Bylaws.
Section
4. The
Corporation may indemnify each person, though he is not or was not a director,
officer, employee or agent of the Corporation, who served at the request of the
Corporation on a committee created by the Board to consider and report to it in
respect of any matter. Any such indemnification may be made under the
provisions hereof and shall be subject to the limitations hereof, except that
(as indicated) any such committee member need not be nor have been a director,
officer, employee or agent of the Corporation.
Section
5. The
provisions hereof shall be applicable to actions, suits or proceedings
(including appeals) commenced after the adoption hereof, whether arising from
acts or omissions to act occurring before or after the adoption
hereof.
Section
6. The
indemnification provisions herein provided shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, or by
law or statute, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or Agent and shall inure to
the benefit of the heirs, executors and administrators of such a
person.
Section
7. The
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, and persons described in Section 4 of this Article above, against
any liability asserted against him and incurred by him in any such capacity or
arising out of his status as such, whether or not the Corporation would have the
power to indemnity him against such liability under the provisions of these
Bylaws.
ARTICLE
VII
CAPITAL
STOCK
Section
1.
Certificates of
Stock
. The shares of capital stock of the Corporation shall be
represented by a certificate, unless the Board of Directors of the Corporation
adopts a resolution permitting shares to be uncertificated. Every
holder of capital stock of the Corporation shall be entitled to have a
certificate for shares of capital stock. The certificates for shares
of the capital stock of the Corporation shall be in such form, not inconsistent
with that required by law and the Articles of Incorporation, as shall be
approved by the Board of Directors. The President or a Vice President
shall cause to be issued to each stockholder one or more certificates, under the
seal of the Corporation or a facsimile thereof if the Board of
Directors
shall
have provided for such seal, and signed by the President or a Vice President and
the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer certifying the number of shares (and, if the stock of the Corporation
shall be divided into classes or series, the class and series of such shares)
owned by such stockholder in the Corporation; provided however, that any of or
all the signatures on the certificate may be facsimile. The stock
record books and the blank stock certificate books shall be kept by the
Secretary, or at the office of such transfer agent or transfer agents as the
Board of Directors may from time to time by resolution determine. In
case any officer, transfer agent or registrar who shall have signed or whose
facsimile signature or signatures shall have been placed upon any such
certificate or certificates shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued by the Corporation, such
certificate may nevertheless be issued by the Corporation with the same effect
as if such person were such officer, transfer agent or registrar at the date of
issue. The stock certificates shall be consecutively numbered and
shall be entered in the books of the Corporation as they are issued and shall
exhibit the holder’s name and number of shares.
Section
2.
Transfer of
Shares
. Stock of the Corporation shall be transferable in the
manner prescribed by applicable law and in these Bylaws. Transfers of
stock shall be made on the books of the Corporation, and in the case of
certificated shares of stock, only by the person named in the certificate or by
such person’s attorney lawfully constituted in writing and upon the surrender of
the certificate therefor, properly endorsed for transfer and payment of all
necessary transfer taxes; or, in the case of uncertificated shares of stock,
upon receipt of proper transfer instructions from the registered holder of the
shares or by such person’s attorney lawfully constituted in writing, and upon
payment of all necessary transfer taxes and compliance with appropriate
procedures for transferring shares in uncertificated form; provided, however,
that such surrender and endorsement, compliance or payment of taxes shall not be
required in any case in which the officers of the Corporation shall determine to
waive such requirement. With respect to certificated shares of stock,
every certificate exchanged, returned or surrendered to the Corporation shall be
marked “Cancelled,” with the date of cancellation, by the Secretary or Assistant
Secretary of the Corporation or the transfer agent thereof. No
transfer of stock shall be valid as against the Corporation for any purpose
until it shall have been entered in the stock records of the Corporation by an
entry showing from and to whom transferred.
Section
3.
Ownership of
Shares
. The Corporation shall be entitled to treat the holder
of record of any share or shares of capital stock of the Corporation as the
holder in fact thereof and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of the State of Nevada.
Section
4.
Regulations Regarding
Certificates
. The Board of Directors shall have the power and
authority to make all such rules, restrictions and regulations as they may deem
expedient concerning the issue, transfer and registration or the replacement of
certificates for shares of capital stock of the Corporation.
Section
5.
Lost or Destroyed
Certificates
. The Board of Directors may determine the
conditions upon which a new certificate of stock may be issued in place of a
certificate which is alleged to have been lost, stolen or destroyed; and may, in
their discretion, require the owner of such certificate or his legal
representative to give bond, with sufficient surety, to indemnity the
Corporation and each transfer agent and registrar against any and all losses or
claims which may arise by reason of the issue of a new certificate in the place
of the one so lost, stolen or destroyed.
Article
VIII
MISCELLANEOUS
PROVISIONS
Section
1.
Fiscal
Year
. The fiscal year of the Corporation shall be such as
established from time to time by the Board of Directors.
Section
2.
Corporate
Seal
. The Board of Directors may provide a suitable seal
containing the name of the Corporation. The Secretary shall have
charge of the seal (if any). If and when so directed by the Board of
Directors or a committee thereof, duplicates of the seal may be kept and used by
the Treasurer or by the Assistant Secretary or Assistant Treasurer.
Section
3.
Notice and Waiver of
Notice
. Whenever any notice is required to be given by law,
the Articles of Incorporation or under the provisions of these Bylaws, said
notice shall be deemed to be sufficient if given (i) by telegraphic, cable,
electronic mail or wireless transmission or (ii) by deposit of the same in a
post office box in a sealed prepaid wrapper addressed to the person entitled
thereto at his post office address, as it appears on the records of the
Corporation, and such notice shall be deemed to have been given on the day of
such transmission or mailing as the case may be.
Whenever
notice is required to be given by law, the Articles of Incorporation or under
any of the provisions of these Bylaws, a written waiver thereof, signed by the
person entitled to notice, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the stockholders,
directors, or members of a committee of directors need be specified in any
written waiver of notice unless so required by the Articles of Incorporation or
the Bylaws.
Section
4.
Resignations
. Any
director, member of a committee or officer may resign at any
time. Such resignation shall be made in writing and shall take effect
at the time specified therein, or if no time be specified, at the time of its
receipt by the chief executive officer or Secretary. The acceptance
of a resignation shall not be necessary to make it effective, unless expressly
so provided in the resignation.
Section
5.
Facsimile
Signatures
. In addition to the provisions for the use of
facsimile signatures elsewhere specifically authorized in these Bylaws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board of Directors.
Section
6.
Reliance Upon Books, Reports
and Records
. Each director and each member of any committee
designated by the Board of Directors shall, in the performance of his duties, be
fully protected in relying in good faith upon the books of account or reports
made to the Corporation by any of its officers, or by an independent certified
public accountant, or by an appraiser selected with reasonable care by the Board
of Directors or by any such committee, or in relying in good faith upon other
records of the Corporation.
Article
IX
AMENDMENTS
The Board
of Directors shall have the power to adopt, amend and repeal from time to time
the Bylaws of the Corporation, subject to the right of the stockholders entitled
to vote by law with respect thereto to amend or repeal such Bylaws as adopted or
amended by the Board of Directors; provided, however, that in the case of
amendments by stockholders or any repeal by stockholders, notwithstanding any
other provisions of these Bylaws or any other provision of law which might
otherwise permit a lesser vote or no vote, but in addition to any affirmative
vote of the holders of any particular class or series of the capital stock of
the Corporation required by law, the Articles of Incorporation or these Bylaws,
the affirmative vote of the holders of at least 80 percent of the voting power
of the then outstanding shares of the Corporation entitled to vote, voting
together as a single class, shall be required to alter, amend or repeal any
provision of these Bylaws.