BY-LAWS
of
BMB
Munai, Inc.
(As
Amended through July 8, 2010)
ARTICLE
I
Offices
Section 1. Registered
Office
. The address of the registered office of Corporation
within the State of Nevada is 3230 East Flamingo Road, Suite 156, Las Vegas,
Nevada 89121. The name of the registered agent of the Corporation at
such address is Gateway Enterprises, Inc.
Section 2. Other
Offices
. The Corporation shall also have and maintain an
office or principal place of business at 202 Dostyk Avenue, Almaty, Kazakhstan
050051 and 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'
Meetings
Section 1. Place of
Meetings
. Meetings of the stockholders of the Corporation
shall be held at such place, either within or without the State of Nevada, as
may be designated from time to time by the Board of Directors, or, if not so
designated, then at the office of the Corporation required to be maintained
pursuant to Section 2 of ARTICLE I hereof.
Section 2. Annual
Meetings
. The Annual Meetings of stockholders of the Corporation for the
purpose of election of directors and for such other business as may lawfully
come before it, shall be held on such date and at such time as may be designated
from time to time by the Board of Directors, or, if not so designated, then at
10:00 a.m. on the second Wednesday in September in each year if not a legal
holiday, and, if a legal holiday, at the same hour and place on the next
succeeding day not a holiday.
Section 3. Special
Meetings
. Special Meetings of the stockholders of the Corporation may be
called, for any purpose or purposes, by the Chairman of the Board or the
President or the Board of Directors at any time.
Section
4. Notice of Meetings.
(a)
Except as otherwise provided by law or the Articles of Incorporation, written
notice of each meeting of stockholders, specifying the place, date and hour and
purpose or purposes of the meeting and the means of electronic communication, if
any, by which stockholders and proxies shall be deemed to be present in person
and vote, shall be given not less than 10 nor more than 60 days before the date
of the meeting to each stockholder entitled to vote thereat, directed to his
address as it appears upon the books of the Corporation.
(b) If
at any meeting action is proposed to be taken which, if taken, would entitle
stockholders fulfilling the requirements of the Nevada Revised Statutes to an
appraisal of the fair value of their shares, the notice of such meeting shall
contain such statements of that purpose and to that effect and shall be
accompanied by a copy of that statutory section as required by the Nevada
Revised Statutes.
(c) When
a meeting is adjourned to another time or 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 unless the adjournment is for more than thirty
days, or unless after the adjournment a new record date is fixed for the
adjourned meeting, in which event a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the
meeting.
(d) Notice
of the time, place and purpose of any meeting of stockholders may be waived in
writing or by transmission of an electronic record, by the person or persons
entitled to notice, either before or after the time stated therein, and to the
extent permitted by law, will be waived by any stockholder by his attendance
thereat, in person or by proxy. Any stockholder so waiving notice of
such meeting shall be bound by the proceedings of any such meeting in all
respects as if due notice thereof had been given.
(e) Unless
and until voted, every proxy shall be revocable at the pleasure of the person
who executed it or of his legal representatives or assigns, except in those
cases where an irrevocable proxy permitted by statute has been
given.
Section
5. Quorum
. At all meetings of stockholders, except
where otherwise provided by law, the Articles of Incorporation, or these
By-Laws, the presence, in person or by proxy duly authorized, of the holders of
a majority of the outstanding shares of stock entitled to vote shall constitute
a quorum for the transaction of business. Shares, the voting of which
at said meeting has been enjoined, or which for any reason cannot be lawfully
voted at such meeting, shall not be counted to determine a quorum at said
meeting. In the absence of a quorum any meeting of stockholders may
be adjourned, from time to time, by vote of the holders of a majority of the
shares represented thereat, but no other business shall be transacted at such
meeting. At such adjourned meeting at which a quorum is present or
represented any business may be transacted which might have been transacted at
the original meeting. The stockholders present at a duly called or
convened meeting, at which a quorum is present, may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum. Except as otherwise
provided by law, the Articles of Incorporation or these By-Laws, all action
taken by the holders of a majority of the voting power represented at any
meeting at which a quorum is present shall be valid and binding upon the
Corporation. In the event that at any meeting at which the holders of
more than one class or series of the Corporation's capital stock are entitled to
vote as a class, a quorum of any such class or series is lacking, the holders of
any class or series represented by a quorum may proceed with the transaction of
the business to be transacted by that class or series, and if such business is
the election of directors, the director whose successors shall not have been
elected shall continue in office until their successors shall have been duly
elected and shall have qualified.
Section 6. Voting
Rights
.
(a) Except
as otherwise provided by law, only persons in whose names shares entitled to
vote stand on the stock records of the Corporation on the record date for
determining the stockholders entitled to vote at said meeting shall be entitled
to vote at such meeting. Shares standing in the names of two or more
persons shall be voted or represented in accordance with the determination of
the majority of such persons, or, if only one of such persons is present in
person or represented by proxy, such person shall have the right to vote such
shares and such shares shall be deemed to be represented for the purpose of
determining a quorum.
(b) Every
person entitled to vote or execute consents shall have the right to do so either
in person or by an agent or agents authorized by a written proxy executed by
such person or his duly authorized agent, which proxy shall be filed with the
Secretary of the Corporation at or before the meeting at which it is to be
used. Said proxy so appointed need not be a
stockholder. No proxy shall be voted on after six months from its
date unless the proxy provides for a longer period, which may not exceed seven
years from the date of its creation.
(c) Without
limiting the manner in which a stockholder may authorize another person or
persons to act for him as proxy pursuant to subsection (b) of this Section, the
following shall constitute a valid means by which a stockholder may grant such
authority:
(1) A
stockholder may execute a writing authorizing another person or persons to act
for him as proxy. Execution may be accomplished by the stockholder or
his authorized officer, director,
employee
or agent signing such writing or causing his or her signature to be affixed to
such writing by any reasonable means including, but not limited to, by facsimile
signature. The proxy may be limited to action on designated
matters.
(2) A
stockholder may authorize another person or persons to act for him as proxy by
transmitting or authorizing the transmission of a telegram, cablegram, or other
means of electronic transmission to the person who will be the holder of the
proxy or to a proxy solicitation firm, proxy support service organization or
like agent duly authorized by the person who will be the holder of the proxy to
receive such transmission, provided that any such telegram, cablegram or other
means of electronic transmission must either set forth or be submitted with
information from which it can be determined that the telegram, cablegram or
other electronic transmission was authorized by the stockholder. If
it is determined that such telegrams, cablegrams or other electronic
transmissions are valid, the inspectors or, if there are no inspectors, such
other persons making that determination shall specify the information upon which
they relied.
(d) Any
copy, facsimile telecommunication or other reliable reproduction of the writing
or transmission created pursuant to subsection (c) of this Section may be
substituted or used in lieu of the original writing or transmission for any and
all purposes for which the original writing or transmission could be used,
provided that such copy, facsimile telecommunication or other reproduction shall
be a complete reproduction of the entire original writing or
transmission.
Section 7. Voting
Procedures and Inspectors of Elections
.
(a) The
Corporation shall, in advance of any meeting of stockholders, appoint one or
more inspectors to act at the meeting and make a written report
thereof. The Corporation may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his
ability.
(b) The
inspectors shall (i) ascertain the number of shares outstanding and the voting
power of each, (ii) determine the shares represented at a meeting and the
validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v) certify their
determination of the number of shares represented at the meeting, and their
count of all votes and ballots. The inspectors may appoint or retain
other persons or entities to assist the inspectors in the performance of the
duties of the inspectors.
(c) The
date and time of the opening and the closing of the polls for each matter upon
which the stockholders will vote at a meeting shall be announced at the
meeting. No ballot, proxies or votes, nor any revocations thereof or
changes thereto, shall be accepted by the inspectors after the closing of the
polls unless a court of competent jurisdiction, upon application by a
stockholder shall determine otherwise.
(d) In
determining the validity and counting of proxies and ballots, the inspectors
shall be limited to an examination of the proxies, any envelopes submitted with
those proxies, any information provided in accordance with Section 78.355(2)(b)
of the Nevada Revised Statutes, ballots and the regular books and records of the
Corporation, except that the inspectors may consider other reliable information
for the limited purpose of reconciling proxies and ballots submitted by or on
behalf of banks, brokers, their nominees or similar persons which represent more
votes than the holder of a proxy is authorized by the record owner to cast or
more votes than the stockholder holds of record. If the inspectors
consider other reliable information for the limited purpose permitted herein,
the inspectors at the time they make their certification pursuant to subsection
(b)(v) of this Section shall specify the precise information considered by them
including the person or persons from whom they obtained the information, when
the information was obtained, the means by which the information was obtained
and the basis for the inspectors' belief that such information is accurate and
reliable.
(e) The
provisions of this Section 7 shall not apply to any annual meeting of
stockholders held prior to the annual meeting of stockholders to be held in
2004.
Section 8. List of
Stockholders
. The officer who has charge of the stock ledger
of the Corporation shall prepare and make, at least 10 days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at said
meeting, arranged in alphabetical order, showing the address of 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 and which place shall be specified in the notice of the meeting, or, if not
specified, at the place where said meeting is to be held, and the list shall be
produced and kept at the time and place of meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 9. Stockholder
Proposals at Annual Meetings
. At an annual meeting of the
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual
meeting, business must be specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, otherwise
properly brought before the meeting by or at the direction of the Board of
Directors or otherwise properly brought before the meeting by a stockholder of
the Corporation (i) who is a stockholder of record on the date of the giving of
the notice provided for in this Section 9 and on the record date for the
determination of stockholders entitled to vote at such annual meeting and (ii)
who complies with the notice procedures set forth in this Section
9. In addition to any other applicable requirements, for business to
be properly brought before an annual meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice to the Secretary
must be delivered to or mailed and received at the principal executive offices
of the Corporation, not less than 90 days nor more than 120 days prior to the
anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within 30 days before or after such anniversary date, notice by
the stockholder in order to be timely must be so received not later than the
close of business on the 10th day following the day on which such notice of the
date of the annual meeting was mailed or such public disclosure of the date of
the annual meeting was made, whichever first occurs. A stockholder's
notice to the Secretary shall set forth as to each matter the stockholder
proposes to bring before the annual meeting, (i) a brief description of the
business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the name and record address
of the stockholder proposing such business, (iii) the class or series and number
of shares of capital stock of the Corporation which are owned beneficially or of
record by the stockholder, (iv) a description of all arrangements or
understandings between the stockholder and any other person or persons
(including their names) in connection with the proposal of such business by the
stockholder and any material interest of the stockholder in such business, and
(v) a representation that the stockholder intends to appear in person or by
proxy at the annual meeting to bring such business before the meeting.
Notwithstanding anything in the By-Laws to the contrary, no business shall be
conducted at the annual meeting except in accordance with the procedures set
forth in this Section 9, provided, however, that nothing in this Section 9 shall
be deemed to preclude discussion by any stockholder of any business properly
brought before the annual meeting in accordance with said procedure. The
Chairman of an annual meeting shall, if the facts warrant, determine and declare
to the meeting that business was not properly brought before the meeting in
accordance with the provisions of this Section 9, and if he should so determine,
he shall so declare to the meeting and any such business not properly brought
before the meeting shall not be transacted.
Section 10. Nominations of
Persons for Election to the Board of Directors
. In addition to
any other applicable requirements, only persons who are nominated in accordance
with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of stockholders by or at
the direction of the Board of Directors, by any nominating committee or person
appointed by the Board of Directors or by any stockholder of the Corporation (i)
who is a stockholder of record on the date of the giving of the notice provided
for in this Section 10 and on the record date for the determination of
stockholders entitled to vote at such annual meeting and (ii) who complies with
the notice procedures set forth in this Section 10. Such nominations,
other than those made by or at the direction of the Board of Directors, shall be
made pursuant to timely notice in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice to the Secretary
must be delivered to or mailed and received at the principal executive offices
of the Corporation not less than 90 days nor more than 120 days prior to the
anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within 30 days before or after such anniversary date, notice by
the stockholder in order to be timely must be so received not later than the
close of business on the 10th day following the day on which such notice of the
date of the annual meeting was mailed or such public disclosure of the date of
the annual meeting was made, whichever first occurs. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a director, (i) the name,
age, business address and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class and number of shares of
the Corporation which are beneficially owned by the person and (iv) any other
information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to Section 14 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules and regulations promulgated thereunder; and (b) as to the stockholder
giving the notice, (i) the name and record address of the stockholder, (ii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by the stockholder, (iii) a description of
all arrangements or understandings between the stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by the stockholder, (iv) a representation
that such stockholder intends to appear in person or by proxy at the meeting to
nominate the persons named in such notice and (v) any other information relating
to the stockholder 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 the election of directors pursuant to Section 14 of the Exchange Act and the
rules and regulations promulgated thereunder. Such notice must be
accompanied by a written consent of each proposed nominee being named as a
nominee and to serve as a director if elected. The Corporation may
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 a director of the Corporation. No person shall be
eligible for election as a director of the Corporation unless nominated in
accordance with the procedures set forth herein. These provisions
shall not apply to nomination of any persons entitled to be separately elected
by holders of preferred stock. The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so determine, he shall
so declare to the meeting and the defective nomination shall be
disregarded.
ARTICLE
III
Directors
Section 1. General
Powers
. The property, affairs and business of the Corporation
shall be managed under the direction of its Board of Directors, which may
exercise all of the powers of the Corporation, except such as are by law or by
the Articles of Incorporation or by these By-Laws expressly conferred upon or
reserved to the stockholders.
Section 2. Number and Term
of Office; Removal
. The number of directors of the Corporation
shall be fixed from time to time by these By-Laws but in no event shall be less
than three (3). Until these By-Laws are further amended, the number
of directors shall be seven (7). The directors shall be divided into
three classes. Each such class shall consist, as nearly as may be
possible, of one-third of the total number of directors, and any remaining
directors shall be included within such group or groups as the Board of
Directors shall designate. At the annual meeting of stockholders in
2004, a class of directors was elected for a one-year term, a class of directors
for a two-year term and a class of directors for a three-year
term. At each succeeding annual meeting of stockholders, beginning in
2005, successors to the class of directors whose term expires at that annual
meeting shall be elected for a three-year term. If the number of
directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class as nearly equal
as possible, but in no case shall a decrease in the number of directors shorten
the term of any incumbent director. A director may be removed from
office for cause only and, subject to such removal, death, resignation,
retirement or disqualification, shall hold office until the annual meeting for
the year in which his term expires and until his successor shall be elected and
qualify. No alteration, amendment or repeal of these By-Laws shall be
effective to shorten the term of any director holding office at the time of such
alteration, amendment or repeal, to permit any such director to be removed
without cause, or to increase the number of directors in any class or in the
aggregate from that existing at the time of such alteration, amendment or repeal
until the expiration of the terms of office of all directors then holding
office, unless such alteration, amendment or repeal has been approved by either
the holders of all shares of stock entitled to vote thereon or by a vote of a
majority of the entire Board of Directors. The provisions of this
Section 2 shall not apply to directors governed by Section 15 of this ARTICLE
III.
Section 3. Election of
Directors
. At each meeting of the stockholders for the
election of directors, the directors to be elected at such meeting shall be
elected by a plurality of votes given at such election.
Section
4. Vacancies
. Any vacancy occurring in the Board of
Directors for any cause other than by reason of an increase in the number of
directors may be filled by a majority of the remaining members of the Board of
Directors, although such majority is less than a quorum, or by the
stockholders. Any vacancy occurring by reason of an increase in the
number of directors may be filled by action of a majority of the entire Board of
Directors or by the stockholders. A director elected by the Board of
Directors to fill a vacancy shall be elected to hold office until the expiration
of the term for which he was elected and until his successor shall have been
elected and shall have been qualified. A director elected by the
stockholders to fill a vacancy shall be elected to hold office until the
expiration of the term for which he was elected and until his successor shall
have been elected and shall have qualified. The provisions of this
Section 4 shall not apply to directors governed by Section 15 of this ARTICLE
III.
Section
5. Resignations
. A director may resign at any time
by giving written notice to the Board of Directors or to the
Secretary. Such resignation shall take effect at the time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 6. Annual
Meetings
. The Board of Directors, as constituted following the
vote of stockholders at any meeting of the stockholders for the election of
directors, may hold its first meeting for the purpose of organization and the
transaction of business, if a quorum be present, immediately after such meeting
and at the same place, and notice of such meeting need not be
given. Such first meeting may be held at any other time and place
specified in a notice given as hereinafter provided for special meetings of the
Board of Directors or in a consent and waiver of notice thereof signed by all
the directors.
Section 7. Regular
Meetings
. Regular meetings of the Board of Directors may be
held without notice at such places and times as may be fixed from time to time
by resolution of the Board.
Section 8. Special
Meetings; Notice
. Special meetings of the Board of Directors
may be called at any time by the Chairman of the Board or the President and
shall be called by the Secretary upon the written request of any three directors
and each special meeting shall be held at such place and time as shall be
specified in the notice thereof. At least twenty-four (24) hours'
notice of each such special meeting shall be given to each director personally
or sent to him addressed to his residence or usual place of business, by
telephone, telegram or by telex, overnight courier (including, without
limitation, FedEx or UPS), facsimile transmission directed to the facsimile
transmission number which the director has provided or consented to receive
notice), electronic mail (directed to the electronic mail address which the
director has provided or consented to receive notice) or such other electronic
means which the director has provided or consented to for delivery of notice, or
at least 120 hours' notice of each such special meeting shall be given to each
director by letter sent to him addressed as aforesaid or on such shorter notice
and by such means as the person or persons calling such meeting may deem
reasonably necessary or appropriate in light of the
circumstances. Any notice by letter or telegram shall be deemed to be
given when deposited in the United States mail so addressed or when duly
deposited at an appropriate office for transmission by telegram, as the case may
be. Such notice need not state the business to be transacted at or
the purpose or purposes of such special meeting. No notice of any
such special meeting of the Board of Directors need be given to any director who
attends in person or who, in writing executed and filed with the records of the
meeting, either before or after the holding thereof, waives such
notice. No notice need be given of an adjourned meeting of the Board
of Directors.
Section 9. Quorum and
Manner of Acting
. A majority of the total number of directors,
but in no event less than two directors, shall constitute a quorum for the
transaction of business at any annual, regular or special meeting of the Board
of Directors. Except as otherwise provided by law, by the Articles of
Incorporation or by these By-Laws, the act of a majority of the directors
present at any meeting, at which a quorum is present, shall be the act of the
Board of Directors. In the absence of a quorum, a majority of the
directors present may adjourn the meeting from time to time until a quorum be
had.
Section 10. Consent in
Writing
. Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee thereof may be taken without
a meeting, if a written consent to such action is signed by all members of the
Board or of such committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the Board or such
committee.
Section
11. Committees
.
(a)
Executive Committee. The Board of Directors may, by resolution passed by a
majority of a quorum of the Board, appoint an Executive Committee of not less
than three members, each of whom shall be a director. The Executive
Committee, to the extent permitted by law, shall have and may exercise when the
Board of Directors is not in session all powers of the Board in the management
of the business and affairs of the Corporation, including, without limitation,
the power and authority to declare a dividend or to authorize the issuance of
stock, except such Committee shall not have the power or authority (i) to
approve, adopt, or recommend to stockholders any action or matter required by
the Nevada Revised Statutes to be submitted for stockholder approval; or (ii) to
adopt, amend, or repeal any By-Law of the Corporation.
(b) Other
Committees. The Board of Directors may, by resolution passed by a
majority of a quorum of the Board, from time to time appoint such other
committees as may be permitted by law. Such other committees
appointed by the Board of Directors shall have such powers and perform such
duties as may be prescribed by the resolution or resolutions creating such
committee, but in no event shall any such committee have the powers denied to
the Executive Committee in these By-Laws.
(c) Term. The
members of all committees of the Board of Directors shall serve a term
coexistent with that of the Board of Directors which shall have appointed such
committee. The Board, subject to the provisions of subsections (a) or
(b) of this Section 11, may at any time increase or decrease the number of
members of a committee or terminate the existence of a committee; provided, that
no committee shall consist of less than one member. The membership of
a committee member shall terminate on the date of his death or voluntary
resignation, but the Board may at any time for any reason remove any individual
committee member and the Board may fill any committee vacancy created by death,
resignation, removal or increase in the number of members of the
committee. 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, and, in addition, in the
absence or disqualification of any member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
(d) Meetings. Unless
the Board of Directors shall otherwise provide, regular meetings of the
Executive Committee or any other committee appointed pursuant to this Section 11
shall be held at such times and places as are determined by the Board of
Directors, or by any such committee, and when notice thereof has been given to
each member of such committee, no further notice of such regular meetings need
be given thereafter; special meetings of any such committee may be held at the
principal office of the Corporation required to be maintained pursuant to
Section 2 of ARTICLE I hereof; or at any place which has been designated from
time to time by resolution of such committee or by written consent of all
members thereof, and may be called by any director who is a member of such
committee, upon written notice to the members of such committee of the time and
place of such special meeting given in the manner provided for the giving of
written notice to members of the Board of Directors of the time and place of
special meetings of the Board of Directors. Notice of any
special meeting of any committee may be waived in writing at any time after the
meeting and will be waived by any director by attendance thereat. A
majority of the authorized number of members of any such committee shall
constitute a quorum for the transaction of business, and the act of a majority
of those present at any meeting at which a quorum is present shall be the act of
such committee.
Section 12. Telephone
Meetings
. The Board of Directors or any committee thereof may
participate in a meeting by means of a conference telephone or similar
communications equipment if all members of the Board or of such committee, as
the case may be, participating in the meeting can hear each other at the same
time. Participation in a meeting by these means shall constitute
presence in person at the meeting.
Section
13. Compensation
. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of Directors
and/or a stated salary as director. No such payment shall preclude
any director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee
meetings.
Section 14. Interested
Directors
. No contract or transaction between the Corporation
and one or more of its directors or officers, or between the Corporation and any
other corporation, partnership, association, or other organization in which one
or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose
if (i) the material facts as to his or their relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of Directors
or committee, and the Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest
and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
Section 15. Directors
Elected by Special Class or Series
. To the extent that any
holders of any class or series of stock other than Common Stock issued by the
Corporation shall have the separate right, voting as a class or series, to elect
directors, the directors elected by such class or series shall be deemed to
constitute an additional class of directors and shall have a term of office for
one year or such other period as may be designated by the provisions of such
class or series providing such separate voting right to the holders of such
class or series of stock, and any such class of directors shall be in addition
to the classes referred to in Section 2 of this ARTICLE III. Any
directors so elected shall be subject to removal in such manner as may be
provided by law or by the Articles of Incorporation of this
Corporation. The provisions of Sections 2 and 4 of this ARTICLE III
do not apply to directors governed by this Section 15.
ARTICLE
IV
Officers
Section 1. Designation of
Officers
. The officers of the Corporation, who shall be chosen
by the Board of Directors at its first meeting after each annual meeting of
stockholders, shall be a Chairman of the Board, a President, one or more Vice
Presidents, a Treasurer, a Secretary and a Controller. The Board of
Directors from time to time may choose such other officers as it shall deem
appropriate. Any one person may hold any number of offices of the
Corporation at any one time unless specifically prohibited therefrom by
law. The Chairman of the Board shall be chosen from among the
directors; the other officers need not be directors.
Section 2. Term of Office;
Resignation; Removal
. The term of office of each officer shall
be until the first meeting of the Board of Directors following the next annual
meeting of stockholders and until his successor is elected and shall have
qualified, or until his death, resignation or removal, whichever is
sooner. Any officer may resign at any time by giving written notice
to the Board of Directors or to the Secretary. Such resignation shall
take effect at the time specified therein and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective. Any officer may be removed at any time either with or
without cause by the Board of Directors.
Section
3. Vacancies
. A vacancy in any office because of
death, resignation, removal, disqualification or any other cause, may be filled
for the unexpired portion of the term by the Board of Directors. A
vacancy in any office because of death, resignation, removal, disqualification
or any other cause, may be filled for the unexpired portion of the term by the
Board of Directors.
Section 4. Authority of
Officers
. Subject to the power of the Board of Directors in
its discretion to change and redefine the duties of the officers of the
Corporation by resolution in such manner as it may from time to time determine,
the duties of the officers of the Corporation shall be as follows:
(a) Chairman
of the Board. The Chairman of the Board shall preside at meetings of the
stockholders and the Board of Directors. Subject to the direction of
the Board of Directors, he shall generally manage the affairs of the Board and
perform such other duties as are assigned by the Board.
(b) Chief
Executive Officer. Chief Executive Officer of the Corporation shall
execute all the powers and perform all the duties usual to such
office. Subject to the discretion of the Board of Directors, he shall
have the responsibility for the strategic management of the affairs of the
Corporation. The Chief Executive Officer shall perform such other
duties as may be prescribed by or assigned to him from time to time by the Board
of Directors. He shall preside at all meetings of the shareholders
and, in case of absence of Chairman of the Board, at meetings of the Board of
Directors. He may appoint officers, agents or employees other than
those appointed by the Board of Directors.
(c) President. President
shall execute all the powers and perform all the duties usual to such office.
Subject to the Direction of the Chief Executive Officer, he shall have
responsibility for the general management of the affairs of the
Corporation. The President shall perform such other duties as may be
prescribed by or assigned to him from time to time by the Board of Directors. In
the absence or disability of the Chief Executive Officer, the President
designated by the board or the Chief Executive Officer shall perform the duties
and exercise the powers of the Chief Executive Officer. President may sign and
execute contracts and other obligations pertaining to the regular course of his
duties.
(d) Other
Officers. The other officers of the Corporation shall have such powers and shall
perform such duties as generally pertain to their respective offices, as well as
such powers and duties as the Board of Directors, the Executive Committee, the
Chief Executive Officer or the President may prescribe.
Section 5. Divisional
Titles
. Any one of the Chief Executive Officer, President, or
Vice President of Human Resources and Administration (each one an "Appointing
Person"), may from time to time confer upon any employee of a division of the
Corporation the title of President, Vice President, Treasurer or Secretary of
such division or any other divisional title or titles deemed
appropriate. Any such titles so conferred may be discontinued and
withdrawn at any time by any one Appointing Person. Any employee of a
division designated by such a divisional title shall have the powers and duties
with respect to such division as shall be prescribed by the Appointing
Person. The conferring, withdrawal or discontinuance of divisional
titles shall be in writing and shall be filed with the Secretary of the
Corporation.
Section
6. Salaries
. The salaries and other compensation of
the principal officers of the Corporation shall be fixed from time to time by
the Board of Directors.
ARTICLE
V
Execution
of Corporate Instruments and Voting of Securities Owned by the
Corporation
Section 1. Execution of
Instruments
. The Board of Directors may in its discretion
determine the method and designate the signatory officer or officers or other
person or persons, to execute any corporate instrument or document, or to sign
the corporate name without limitation, except where otherwise provided by law,
and such execution or signature shall be binding upon the
Corporation. All checks and drafts drawn on banks or other
depositories on funds to the credit of the Corporation or in special accounts of
the Corporation, shall be signed by such person or persons as the Treasurer or
such other person designated by the Board of Directors for that purpose shall
authorize so to do.
Section 2. Voting of
Securities Owned by the Corporation
. All stock and other
securities of other corporations and business entities owned or held by the
Corporation for itself, or for other parties in any capacity, shall be voted,
and all proxies with respect thereto shall be executed, by the person authorized
to do so by resolution of the Board of Directors.
ARTICLE
VI
Shares
of Stock and Other Securities
Section 1. Form and Execution of
Certificates
. Shares of stock of the Corporation shall be
represented by certificates, or shall be uncertificated shares that may be
evidenced by a book-entry system maintained by the registrar of such stock, or a
combination of both, and such forms as is consistent with the Articles of
Incorporation and applicable law. To the extent that shares are
represented by certificates, such certificates shall be in a form approved by
the board of directors. Every certificate shall be signed by, or in
the name of the Corporation by, the Chairman of the Board (if there be such an
officer appointed), or by the President or any Vice President and by the
Treasurer or Assistant Treasurer or the Secretary or Assistant Secretary,
certifying the number of shares owned by him in the Corporation. Any
or all of the signatures on the certificate may be a facsimile. In
case any officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued with the same effect as if he were such officer, transfer agent, or
registrar at the date of issue. If the Corporation shall be
authorized to issue more than one class of stock or more than one series of any
class, the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights shall be set forth in full or summarized on the face or back of the
certificate which the Corporation shall issue to represent such class or series
of stock, provided that, except as otherwise provided in Section 78.242 of the
Nevada Revised Statutes, in lieu of the foregoing requirements, there may be set
forth on the face or back of the certificate which the Corporation shall issue
to represent such class or series of stock, a statement that the Corporation
will furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
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 theretofore issued by the Corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost 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 or destroyed certificate or certificates, or his legal
representative, to indemnify the Corporation in such manner as it shall require
and/or to give the Corporation a surety bond in such form and amount as it may
direct as indemnity against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost or
destroyed.
Section
3. Transfers
. Certificated shares of the
Corporation will only be transferred on its books upon the surrender to the
Corporation of the share certificates duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer. The
surrendered certificates shall be canceled, new certificates issued to the
person entitled to them and the transaction recorded on the books of the
Corporation. Uncertificated shares will only be transferred on the
books of the Corporation upon the written instruction from the registered owner
of such uncertificated shares, or from a duly authorized attorney or from an
individual presenting proper evidence of succession, assignment or authority to
transfer the stock.
Section 4. Fixing Record
Dates
. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or 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 may fix, in advance, a record date,
which shall not be more than 60 nor less than 10 days before the date of such
meeting, nor more than 60 days prior to any other action. If no
record date is fixed: (1) the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held; (2) the record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting,
when no prior action by the Board of Directors is necessary, shall be the day on
which the first written consent is expressed; (3) the record date for
determining stockholders for any other purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 5. Registered
Stockholders
. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares
to receive dividends, and to vote as such owner, and 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 Nevada.
Section
6. Regulations
. The Board of Directors may make
such rules and regulations as it may deem expedient concerning the issue,
transfer and registration of certificates for shares of the stock and other
securities of the Corporation, and may appoint transfer agents and registrars of
any class of stock or other securities of the Corporation.
Section 7. Other
Securities of the Corporation
. All bonds, debentures and other
corporate securities of the Corporation, other than stock certificates, may be
signed by the Chairman of the Board (if there be such an officer appointed), or
the President or any Vice President or such other person as may be authorized by
the Board of Directors and the corporate seal impressed thereon or a facsimile
of such seal imprinted thereon and attested by the signature of the Secretary or
an Assistant Secretary, or the Treasurer or an Assistant Treasurer; provided,
however, that where any such bond, debenture or other corporate security shall
be authenticated by the manual signature of a trustee under an indenture
pursuant to which such bond, debenture or other corporate security shall be
issued, the signature of the persons signing and attesting the corporate seal on
such bond, debenture or other corporate security may be the imprinted facsimile
of the signatures of such persons. Interest coupons appertaining to
any such bond, debenture or other corporate security, authenticated by a trustee
as aforesaid, shall be signed by the Treasurer or an Assistant Treasurer of the
Corporation, or such other person as may be authorized by the Board of
Directors, or bear imprinted thereon the facsimile signature of such
person. In case any officer who shall have signed or attested any
bond, debenture or other corporate security or whose facsimile signature shall
appear thereon shall have ceased to be such officer before the bond, debenture
or other corporate security so signed or attested shall have been delivered,
such bond, debenture or other corporate security nevertheless may be adopted by
the Corporation and issued and delivered as though the person who signed the
same or whose facsimile signature shall have been used thereon had not ceased to
be such officer of the Corporation.
ARTICLE
VII
Corporate
Seal
The
corporate seal shall consist of a die bearing the name of the Corporation and
the state and date of its incorporation. Said seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE
VIII
Indemnification of Officers,
Directors, Employees and Agents
Section 1. Power to
Indemnify in Actions, Suits or Proceedings Other Than Those by or in the Right
of the Corporation
. Subject to Section 3 of this ARTICLE VIII,
the Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the request of the Corporation
as a director or officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful. The right
to indemnification conferred in this ARTICLE VIII shall be a contract
right.
Section 2. Power to
Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation
. Subject to Section 3 of this ARTICLE VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that
he is or was a director or officer of the Corporation, or is or was a director
or officer of the Corporation serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation; except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
Section 3. Authorization
of Indemnification
. Any indemnification under this ARTICLE
VIII (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
director or officer is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 1 or Section 2 of this
ARTICLE VIII, as the case may be. Such determination shall be made
(i) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders. To the extent, however, that a
director or officer of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding described above, or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific
case.
Section 4. Good Faith
Defined
. For purposes of any determination under Section 3 of
this ARTICLE VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, or, with respect to any criminal action or proceeding, to have
had no reasonable cause to believe his conduct was unlawful, if his action is
based on the records or books of account of the Corporation or another
enterprise, or on information supplied to him by the officers of the Corporation
or another enterprise in the course of their duties, or on the advice of legal
counsel for the Corporation or another enterprise or on information or records
given or reports made to the Corporation or another enterprise by an independent
certified public accountant or by an appraiser or other expert selected with
reasonable care by the Corporation or another enterprise. The term
"another enterprise" as used in this Section 4 shall mean any other corporation
or any partnership, joint venture, trust, employee benefit plan or other
enterprise of which such person is or was serving at the request of the
Corporation as a director, officer, employee or agent. The provisions
of this Section 4 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Sections 1 or 2 of this ARTICLE VIII, as the
case may be.
Section 5. Indemnification
by a Court
. Notwithstanding any contrary determination in the
specific case under Section 3 of this ARTICLE VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to
any court of competent jurisdiction in the State of Nevada for indemnification
to the extent otherwise permissible under Sections 1 and 2 of this ARTICLE
VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of
conduct set forth in Sections 1 or 2 of this ARTICLE VIII, as the case may
be. Neither a contrary determination in the specific case under
Section 3 of this ARTICLE VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director
or officer seeking indemnification has not met any applicable standard of
conduct. Notice of any application for indemnification pursuant to
this Section 5 shall be given to the Corporation promptly upon the filing of
such application. If successful, in whole or in part, the
director or officer seeking indemnification shall also be entitled to be paid
the expense of prosecuting such application.
Section 6. Expenses
Payable in Advance
. Expenses incurred by a director or officer
in defending or investigating a threatened or pending action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
authorized in this ARTICLE VIII.
Section 7. Nonexclusivity of
Indemnification and Advancement of Expenses
. The
indemnification and advancement of expenses provided by or granted pursuant to
this ARTICLE VIII shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any By-Law, agreement, contract, vote of stockholders or disinterested directors
or pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in Sections 1 and 2 of
this ARTICLE VIII shall be made to the fullest extent permitted by
law. The provisions of this ARTICLE VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Sections 1 or
2 of this ARTICLE VIII but whom the Corporation has the power or obligation to
indemnify under the provisions of the Nevada Revised Statutes, or
otherwise.
Section
8. Insurance
. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a director or officer
of the Corporation, or is or was a director or officer of the Corporation
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise 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 or the obligation to
indemnify him against such liability under the provisions of this ARTICLE
VIII.
Section 9. Certain
Definitions
. For purposes of this ARTICLE VIII, 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 or officers, so that any
person who is or was a director or officer of such constituent corporation, or
is or was a director or officer of such constituent corporation serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall stand in the same position under the
provisions of this ARTICLE VIII with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued. For purposes of this ARTICLE VIII,
references to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director, officer, employee
or agent of the Corporation which imposes duties on, or involves services by,
such director or officer with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this ARTICLE VIII.
Section 10. Survival of
Indemnification and Advancement of Expenses
. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this ARTICLE VIII shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director or officer and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
Section 11. Limitation on
Indemnification
. Notwithstanding anything contained in this
ARTICLE VIII to the contrary, except for proceedings to enforce rights to
indemnification (which shall be governed by Section 5 hereof), the Corporation
shall not be obligated to indemnify any director or officer in connection with a
proceeding (or part thereof) initiated by such person unless such proceeding (or
part thereof) was authorized or consented to by the Board of Directors of the
Corporation.
Section
12. Indemnification of Employees and Agents
. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, provide rights to indemnification and to the advancement of expenses
to employees and agents of the Corporation similar to those conferred in this
ARTICLE VIII to directors and officers of the Corporation.
Section 13. Effect of
Amendment
. Any amendment, repeal or modification of this
ARTICLE VIII shall not (a) adversely affect any right or protection of any
director or officer existing at the time of such amendment, repeal or
modification, or (b) apply to the indemnification of any such person for
liability, expense, or loss stemming from actions or omissions occurring prior
to such amendment, repeal, or modification.
Section 14. Authority to
Enter into Indemnification Agreements
. The Corporation may
enter into indemnification agreements with the directors and officers of the
Corporation, including, without limitation, any indemnification agreement in
substantially the form set forth in Exhibit 1 attached to these
By-Laws.
ARTICLE
IX
Notices
Whenever,
under any provisions of these By-Laws, notice is required to be given to any
stockholder, the same shall be given in writing, timely and duly deposited in
the United States Mail, postage prepaid, and addressed to his last known post
office address as shown by the stock record of the Corporation or its transfer
agent. Any notice required to be given to any director may be given
by any of the methods stated in Section 8 of ARTICLE III hereof. If
no address of a stockholder or director be known, such notice may be sent to the
office of the Corporation required to be maintained pursuant to Section 2 of
ARTICLE I hereof. An affidavit of mailing, executed by a duly
authorized and competent employee of the Corporation or its transfer agent
appointed with respect to the class of stock affected, specifying the name and
address or the names and addresses of the stockholder or stockholders, director
or directors, to whom any such notice or notices was or were given, and the time
and method of giving the same, shall be conclusive evidence of the statements
therein contained. All notices given by mail, as above provided,
shall be deemed to have been given as at the time of mailing and all notices
given by telegram or other means of electronic transmission shall be deemed to
have been given as at the sending time recorded by the telegraph company or
other electronic transmission equipment transmitting the
same. It shall not be necessary that the same method of giving be
employed in respect of all directors, but one permissible method may be employed
in respect of any one or more, and any other permissible method or methods may
be employed in respect of any other or others. The period or
limitation of time within which any stockholder may exercise any option or
right, or enjoy any privilege or benefit, or be required to act, or within which
any director may exercise any power or right, or enjoy any privilege, pursuant
to any notice sent him in the manner above provided, shall not be affected or
extended in any manner by the failure of such a stockholder or such director to
receive such notice. Whenever any notice is required to be given
under the provisions of Nevada corporate law or of the Articles of
Incorporation, or of these By-Laws, a waiver thereof in writing signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. Whenever notice
is required to be given, under any provision of law or of the Articles of
Incorporation or By-Laws of the Corporation, to any person with whom
communication is unlawful, the giving of such notice to such person shall not be
required and there shall be no duty to apply to any governmental authority or
agency for a license or permit to give such notice to such
person. Any action or meeting which shall be taken or held without
notice to any such person with whom communication is unlawful shall have the
same force and effect as if such notice had been duly given. In the
event that the action taken by the Corporation is such as to require the filing
of a certificate under any provision of the Nevada Revised Statutes, the
certificate shall state, if such is the fact and if notice is required, that
notice was given to all persons entitled to receive notice except such persons
with whom communication is unlawful.
ARTICLE
X
Amendments
The Board
of Directors is expressly authorized to adopt, alter and repeal the By-Laws of
the Corporation in whole or in part at any regular or special meeting of the
Board of Directors, by vote of a majority of the entire Board of
Directors. The By-Laws may also be adopted, altered or repealed in
whole or in part at any annual or special meeting of the stockholders by the
affirmative vote of a majority of the shares of the Corporation outstanding and
entitled to vote thereon.
CERTIFICATE
OF SECRETARY
The
undersigned, President and Secretary of BMB Munai, Inc., a Nevada corporation,
hereby certifies that the foregoing is a full, true and correct copy of the
By-Laws of said Corporation, with all amendments to date of this
Certificate.
WITNESS
the signature of the undersigned and the seal of the Corporation this 8
th
day
of July, 2010.
/s/ Askar
Tashtitov
Askar
Tashtitov, President
/s/ Adam R.
Cook
Adam R.
Cook, Secretary
Exhibit
1
INDEMNIFICATION
AGREEMENT
AGREEMENT, effective as of
__________________between BMB Munai, Inc., a Nevada corporation (the “Company”),
and _____________________ (the “Indemnitee”).
WHEREAS, it is essential to the Company
to retain and attract as directors and officers the most capable persons
available.
WHEREAS, Indemnitee is a
director/officer of the Company.
WHEREAS, both the Company and
Indemnitee recognize the increased risk of
litigation
and other claims being asserted against directors of public companies in today’s
environment;
WHEREAS, the Articles of Incorporation
and the By-laws of the Company require the Company to indemnify and advance
expenses to its directors to the fullest extent permitted by law and the
Indemnitee has been serving and continues to serve as a director or officer of
the Company in part in reliance on such Articles of Incorporation and
By-laws;
WHEREAS, in recognition of Indemnitee's
need for substantial protection against personal liability in order to enhance
Indemnitee's continued service to the Company in an effective manner and
Indemnitee's reliance on the aforesaid Articles of Incorporation and By-laws,
and in part to provide Indemnitee with specific contractual assurance that the
protection promised by such Articles of Incorporation and By-laws will be
available to Indemnitee (regardless of, among other things, any amendment to or
revocation of such Articles of Incorporation and By-laws or any change in the
composition of the Company's Board of Directors or acquisition transaction
relating to the Company), and in order to induce Indemnitee to continue to
provide services to the Company as a director or officer thereof, the Company
wishes to provide in this Agreement for the indemnification of and the advancing
of expenses to Indemnitee to the fullest extent (whether partial or complete)
permitted by law and as set forth in this Agreement, and, to the extent
insurance is maintained, for the continued coverage of Indemnitee under the
Company's directors' and officers' liability insurance policies.
NOW,
THEREFORE, in consideration of the premises and of Indemnitee continuing to
serve the Company directly or, at its request, with another enterprise, and
intending to be legally bound hereby, the parties hereto agree as
follows:
1.
Certain Definitions.
(a) Change
in Control: shall be deemed to have occurred if (i) any "person" (as such term
is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended), other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or a corporation owned directly or
indirectly by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing 20% or more of the total
voting power represented by the Company's then outstanding Voting Securities, or
(ii) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Company and
any new director whose election by the Board of Directors or nomination for
election by the Company's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority thereof,
or (iii) the stockholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than a merger or consolidation
which would result in the Voting Securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of the surviving
entity) at least 80% of the total voting power represented by the Voting
Securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation, or the stockholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company (in one transaction or a series of transactions) of
all or substantially all of the Company's assets.
(b) Expense:
include attorneys' fees and all other costs, expenses and obligations paid or
incurred in connection with investigating, defending, being a witness in or
participating in (including on appeal), or preparing to defend, be a witness in
or participate in any Proceeding relating to any Indemnifiable
Event.
(c) Indemnifiable
Event: any event or occurrence that takes place either prior to or after the
execution of this Agreement, related to the fact that Indemnitee is or was a
director or an officer of the Company, or while a director or officer is or was
serving at the request of the Company as a director, officer, employee, trustee,
agent or fiduciary of another corporation, partnership, joint venture, employee
benefit plan, trust or other enterprise, or by reason of anything done or not
done by Indemnitee in any such capacity.
(d) Potential
Change in Control: shall be deemed to have occurred if (i) the Company enters
into an agreement or arrangement, the consummation of which would result in the
occurrence of Change in Control; (ii) any person (including the Company)
publicly announces an intention to take or to consider taking actions which if
consummated would constitute Change in Control; (iii) any person, other than a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company acting in such capacity or a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, who is or becomes the
beneficial owner, directly or indirectly, of securities of the Company
representing 10% or more of the combined voting power of the Company's then
outstanding Voting Securities, increases his beneficial ownership of such
securities by 5% or more over the percentage so owned by such person on the date
hereof; or (iv) the Board adopts a resolution to the effect that, for purposes
of this Agreement, a Potential Change in Control has occurred.
(e) Proceeding:
any threatened, pending or completed action, suit or proceeding, or any inquiry,
hearing or investigation, whether conducted by the Company or any other party,
that Indemnitee in good faith believes might lead to the institution of any such
action, suit or proceeding, whether civil, criminal, administrative,
investigative or other.
(f) Reviewing
Party: any appropriate person or body consisting of a member or members of the
Company's Board of Directors or any other person or body appointed by the Board
(including the special, independent counsel referred to in Section 3) who is not
a party to the particular Proceeding with respect to which Indemnitee is seeking
indemnification.
(g) Voting
Securities: any securities of the Company which vote generally in the election
of directors.
2.
Agreement to Indemnify.
(a) In
the event Indemnitee was, is or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness or other
participant in, a Proceeding by reason of (or arising in part out of) an
Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest
extent permitted by law, as soon as practicable but in any event no later than
thirty days after written demand is presented to the Company, against any and
all Expenses, judgments, fines, penalties and amounts paid in settlement
(including all interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses, judgments, fines, penalties or
amounts paid in settlement) of such Proceeding and any federal, state, local or
foreign taxes imposed on the Indemnitee as a result of the actual or deemed
receipt of any payments under this Agreement (including the creation of the
Trust). Notwithstanding anything in this Agreement to the contrary
and except as provided in Section 5, prior to a Change in Control Indemnitee
shall not be entitled to indemnification pursuant to this Agreement in
connection with any Proceeding initiated by Indemnitee against the Company or
any director or officer of the Company unless the Company has joined in or
consented to the initiation of such Proceeding. If so requested by
Indemnitee, the Company shall advance (within ten business days of such request)
any and all Expenses to Indemnitee (an "Expense Advance").
(b) Notwithstanding
the foregoing, (i) the obligations of the Company under Section 2(a) shall be
subject to the condition that the Reviewing Party shall not have determined (in
a written opinion, in any case in which the special, independent counsel
referred to in Section 3 hereof is involved) that Indemnitee would not be
permitted to be indemnified under applicable law, and (ii) the obligation of the
Company to make an Expense Advance pursuant to Section 2(a) shall be subject to
the condition that, if, when and to the extent that the Reviewing Party
determines that Indemnitee would not be permitted to be so indemnified under
applicable law, the Company shall be entitled to be reimbursed by Indemnitee
(who hereby agrees to reimburse the Company) for all such amounts theretofore
paid; provided, however, that if Indemnitee has commenced legal proceedings in a
court of competent jurisdiction to secure a determination that Indemnitee should
be indemnified under applicable law, any determination made by the Reviewing
Party that Indemnitee would not be permitted to be indemnified under applicable
law shall not be binding and Indemnitee shall not be required to reimburse the
Company for any Expense Advance until a final judicial determination is made
with respect thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed). Indemnitee's obligation to reimburse the
Company for Expense Advances shall be unsecured and no interest shall be charged
thereon. If there has not been a Change in Control the Reviewing
Party shall be selected by the Board of Directors, and if there has been such a
Change in Control (other than a Change in Control which has been approved by a
majority of the Company's Board of Directors who were directors immediately
prior to such Change in Control), the Reviewing Party shall be the special,
independent counsel referred to in Section 3 hereof. If there has
been no determination by the Reviewing Party or if the Reviewing Party
determines that Indemnitee substantively would not be permitted to be
indemnified in whole or in part under applicable law, Indemnitee shall have the
right to commence litigation in any court in the State of Nevada having subject
matter jurisdiction thereof and in which venue is proper seeking an initial
determination by the court or challenging any such determination by the
Reviewing Party or any aspect thereof, and the Company hereby consents to
service of process and to appear in any such proceeding. Any
determination by the Reviewing Party otherwise shall be conclusive and binding
on the Company and Indemnitee.
3. Change
in Control. The Company agrees that if there is a Change in Control of the
Company (other than a Change in Control which has been approved by a majority of
the Company's Board of Directors who were directors immediately prior to such
Change in Control) then with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and Expense Advances
under this Agreement or any other agreement or under applicable law or the
Company's Articles of Incorporation or By-Laws now or hereafter in effect
relating to indemnification for Indemnifiable Events, the Company shall seek
legal advice only from special independent counsel selected by Indemnitee and
approved by the Company (which approval shall not be unreasonably withheld), and
who has not otherwise performed services for the Company or the Indemnitee
(other than in connection with such matters) within the last five
years. Such independent counsel shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or Indemnitee in
an action to determine Indemnitee's rights under this Agreement. Such
counsel, among other things, shall render its written opinion to the Company and
Indemnitee as to whether and to what extent the Indemnitee would be permitted to
be indemnified under applicable law. The Company agrees to pay the
reasonable fees of the special, independent counsel referred to above and to
indemnify fully such counsel against any and all expenses (including attorneys'
fees), claims, liabilities and damages arising out of or relating to this
Agreement or the engagement of special, independent counsel pursuant
hereto.
4. Establishment
of Trust. In the event of a Potential Change in Control, the Company shall, upon
written request by Indemnitee, create a Trust for the benefit of the Indemnitee
and from time to time upon written request of Indemnitee shall fund such Trust
in an amount sufficient to satisfy any and all Expenses reasonably anticipated
at the time of each such request to be incurred in connection with
investigating, preparing for and defending any Proceeding relating to an
Indemnifiable event, and any and all judgments, fines, penalties and settlement
amounts of any and all Proceedings relating to an Indemnifiable Event from time
to time actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the Trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing Party, in
any case in which the special, independent counsel referred to above is
involved. The terms of the Trust shall provide that upon a Change in
Control (i) the Trust shall not be revoked or the principal thereof invaded,
without the written consent of the Indemnitee, (ii) the Trustee shall advance,
within ten business days of a request by the Indemnitee, any and all Expenses to
the Indemnitee (and the Indemnitee hereby agrees to reimburse the Trust under
the circumstances under which the Indemnitee would be required to reimburse the
Company under Section 2(b) of this Agreement), (iii) the Trust shall continue to
be funded by the Company in accordance with the funding obligation set forth
above, (iv) the Trustee shall promptly pay to the Indemnitee all amounts for
which the Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such Trust shall revert
to the Company upon a final determination by the Reviewing Party or a court of
competent jurisdiction, as the case may be, that the Indemnitee has been fully
indemnified under the terms of this Agreement. The Trustee shall be
chosen by the Indemnitee. Nothing in this Section 4 shall relieve the
Company of any of its obligations under this Agreement. All income
earned on the assets held in the Trust shall be reported as income by the
Company for federal, state, local and foreign tax purposes.
5. Indemnification
for Expenses Incurred in Enforcing this Agreement. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees), and, if
requested by Indemnitee, shall (within ten business days of such request)
advance such expenses to Indemnitee, which are incurred by Indemnitee in
connection with any claim asserted against or action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under this
Agreement or any other agreement or under applicable law or the Company's
Articles of Incorporation or By-laws now or hereafter in effect relating to
indemnification for Indemnifiable Events and/or (ii) recovery under any
directors' and officers' liability insurance policies maintained by the Company,
regardless of whether Indemnitee ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance recovery, as the case may
be.
6. Partial
Indemnity. If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the Expenses, judgments,
fines, penalties and amounts paid in settlement of a Proceeding but not,
however, for all of the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion thereof to which Indemnitee is
entitled. Moreover, notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the merits or
otherwise in defense of any or all Proceedings relating in whole or in part to
an Indemnifiable Event or in defense of any issue or matter therein, including
dismissal without prejudice, Indemnitee shall be indemnified against all
Expenses incurred in connection therewith.
7. Defense
to Indemnification, Burden of Proof and Presumptions. It shall be a defense to
any action brought by the Indemnitee against the Company to enforce this
Agreement (other than an action brought to enforce a claim for expenses incurred
in defending a Proceeding in advance of its final disposition where the required
undertaking has been tendered to the Company) that the Indemnitee has not met
the standards of conduct that make it permissible under Nevada corporate law for
the Company to indemnify the Indemnitee for the amount claimed. In
connection with any determination by the Reviewing Party or otherwise as to
whether the Indemnitee is entitled to be indemnified hereunder, the burden of
proving such a defense shall be on the Company. Neither the failure
of the Company (including its Board of Directors, independent legal counsel, or
its stockholders) to have made a determination prior to the commencement of such
action by the Indemnitee that indemnification of the claimant is proper under
the circumstances because he or she has met the applicable standard of conduct
set forth in Nevada corporate law, nor an actual determination by the Company
(including its Board of Directors, independent legal counsel, or its
stockholders) that the Indemnitee had not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
Indemnitee has not met the applicable standard of conduct. For
purposes of this Agreement, the termination of any claim, action, suit or
proceeding, by judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere, or its equivalent,
shall not create a presumption that Indemnitee did not meet any particular
standard of conduct or have any particular belief or that a court has determined
that indemnification is not permitted by applicable law.
8. Non-exclusivity.
The rights of the Indemnitee hereunder shall be in addition to any other rights
Indemnitee may have under the Company's Articles of Incorporation or By-laws or
the Nevada corporate law or otherwise. To the extent that a change in
Nevada corporate law (whether by statute or judicial decision) permits greater
indemnification by agreement than would be afforded currently under the
Company's Articles of Incorporation and By-laws and this Agreement, it is the
intent of the parties hereto that Indemnitee shall enjoy by this Agreement the
greater benefits so afforded by such change.
9. Liability
Insurance. To the extent the Company maintains an insurance policy or policies
providing directors' and officers' liability insurance, Indemnitee shall be
covered by such policy or policies, in accordance with its or their terms, to
the maximum extent of the coverage available for any Company director or
officer.
10. Period
of Limitations. No legal action shall be brought and no cause of action shall be
asserted by or on behalf of the Company or any affiliate of the Company against
Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual of
such cause of action, or such longer period as may be required by state law
under the circumstances, and any claim or cause of action of the Company or its
affiliate shall be extinguished and deemed released unless asserted by the
timely filing of a legal action within such period; provided, however, that if
any shorter period of limitations is otherwise applicable to any such cause of
action such shorter period shall govern.
11. Amendment
of this Agreement. No supplement, modification or amendment of this Agreement
shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
12. Subrogation.
In the event of payment under this Agreement, the Company shall be subrogated to
the extent of such payment to all of the rights of recovery of Indemnitee, who
shall execute all papers required and shall do everything that may be necessary
to secure such rights, including the execution of such documents necessary to
enable the Company effectively to bring suit to enforce such
rights.
13. No
Duplication of Payments. The Company shall not be liable under this Agreement to
make any payment in connection with any claim made against Indemnitee to the
extent Indemnitee has otherwise actually received payment (under any insurance
policy, By-law or otherwise) of the amounts otherwise indemnifiable
hereunder.
14. Settlement
of Claims. The Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim effected
without the Company's written consent. The Company shall not settle
any action or claim in any manner which would impose any penalty or limitation
on Indemnitee without Indemnitee's written consent. Neither the
Company nor the Indemnitee will unreasonably withhold their consent to any
proposed settlement. The Company shall not be liable to indemnify the
Indemnitee under this Agreement with regard to any judicial award if the Company
was not given a reasonable and timely opportunity, at its expense, to
participate in the defense of such action.
15. Binding
Effect. This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors, assigns,
including any direct or indirect successor by purchase, merger, consolidation or
otherwise to all or substantially all of the business and/or assets of the
Company, spouses, heirs, and personal and legal representatives. The
Company shall require and cause any successor (whether direct or indirect by
purchase, merger, consolidation or otherwise) to all, substantially all, or a
substantial part, of the business and/or assets of the Company, by written
agreement in form and substance satisfactory to the Indemnitee, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform if no such succession had
taken place. This Agreement shall continue in effect regardless of
whether Indemnitee continues to serve as a director or officer of the Company or
of any other enterprise at the Company's request.
16. Severability.
The provisions of this Agreement shall be severable in the event that any of the
provisions hereof (including any provision within a single section, paragraph or
sentence) is held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, and the remaining provisions shall remain enforceable
to the fullest extent permitted by law. Furthermore, to the fullest
extent possible, the provisions of this Agreement (including, without
limitation, each portion of this Agreement containing any provision held to be
invalid, void or otherwise unenforceable, that is not itself invalid, void or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
17. Governing
Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Nevada applicable to contracts made and
to be performed in such State without giving effect to the principles of
conflicts of laws.
IN
WITNESS WHEREOF, the parties hereto have duly executed and
delivered
this
Agreement as of the _______________ day of _______________, 20___.
BMB
MUNAI, INC.
By: ____________________________________
Name:
Title:
“INDEMNITEE”
______________________________________