UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
COFFEE HOLDING CO., INC.
(Exact name of registrant as specified in its charter)
NEVADA 11-223811
(State of incorporation or organization) (I.R.S. Employer Identification No.)
4401 FIRST AVENUE
BROOKLYN, NY 11232-0005
(Address of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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COMMON STOCK, $0.001 PAR VALUE AMERICAN STOCK EXCHANGE
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If this form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A.(c), check the following box [X].
If this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d), check the following box [ ].
Securities Act registration statement file number to which this form relates: 333-116838
Securities to be registered pursuant to Section 12(g) of the Act: None.
Coffee Holding Co., Inc. (the "Registrant") hereby incorporates by reference the description of its securities to be registered hereunder contained under the heading "Description of Capital Stock" in Registrant's Registration Statement on Form SB-2 (Registration No. 333-116838), as originally filed with the Securities and Exchange Commission, (the "Commission") on June 24, 2004 or subsequently amended (the "Registration Statement"), and in the prospectus included in the Registration Statement to be filed separately by Registrant with the Commission pursuant to Rule 424(b) under the Securities Act of 1933, as amended.
The following Exhibits are either filed as part of this Registration Statement or are incorporated herein by reference:
3.1 Amended and Restated Articles of Incorporation of Coffee Holding Co., Inc.
3.2 Amended and Restated Bylaws of Coffee Holding Co., Inc.
4.1 Form of Stock Certificate of Coffee Holding Co., Inc. (incorporated herein by reference to the Coffee Holding Co., Inc. Registration Statement on Form SB-2, filed with the Securities and Exchange Commission on June 24, 2004).
4.2 Form of Warrant Certificate (incorporated herein by reference to the Coffee Holding Co., Inc. Registration Statement on Form SB-2/A, filed with the Securities and Exchange Commission on October 25, 2004).
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized.
COFFEE HOLDING CO., INC.
By: /s/ Andrew Gordon
---------------------------------------
Andrew Gordon
President and Chief Executive Officer
Dated: April 29, 2005
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Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
COFFEE HOLDING CO., INC.
TABLE OF CONTENTS
Page
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ARTICLE I NAME.................................................................1
ARTICLE II REGISTERED OFFICE AND AGENT.........................................1
ARTICLE III PURPOSE............................................................1
ARTICLE IV CAPITAL STOCK.......................................................1
ARTICLE V BOARD OF DIRECTORS...................................................3
ARTICLE VI ACTION BY SHAREHOLDERS WITHOUT A MEETING............................5
ARTICLE VII CERTAIN BUSINESS COMBINATIONS......................................5
ARTICLE VIII LIMITATION OF DIRECTOR LIABILITY..................................7
ARTICLE IX INDEMNIFICATION.....................................................8
ARTICLE X AMENDMENTS..........................................................13
ARTICLE XI NOTICES............................................................14
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AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
COFFEE HOLDING CO., INC.
THE UNDERSIGNED, does hereby certify that these Amended and Restated Articles of Incorporation of Coffee Holding Co., Inc. were duly adopted in accordance with the provisions of Title 7, Chapter 78 of the Nevada Revised Statutes, and further certifies as follows:
ARTICLE I
NAME
The name of the corporation is Coffee Holding Co., Inc. (the "Corporation").
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the registered office of the Corporation in the State of Nevada is 502 East John Street, Room E, Carson City, Nevada 89706. The name of its registered agent at such address is CSC Services of Nevada, Inc.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the Nevada Revised Statutes.
ARTICLE IV
CAPITAL STOCK
SECTION 1. Shares, Classes and Series Authorized. The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is forty million (40,000,000) shares, of which ten million (10,000,000) shares shall be preferred stock, par value $.001 per share (the "Preferred Stock"), and thirty million (30,000,000) shares shall be common stock, par value $.001 per share (the "Common Stock"). The Preferred Stock and Common Stock are sometimes hereinafter collectively referred to as the "Capital Stock."
SECTION 2. Designations, Powers, Preferences, Rights, Qualifications, Limitations and Restrictions Relating to the Capital Stock. The following is a statement of the designations, powers, preferences and rights in respect of the classes of the Capital Stock, and the qualifications, limitations or restrictions thereof, and of the authority with respect thereto expressly vested in the Board of Directors of the Corporation (the "Board of Directors"):
(a) Preferred Stock. The Preferred Stock may be issued from time to time in one or more series, the number of shares and any designation of each series and the powers, preferences and rights of the shares of each series, and the qualifications, limitations or restrictions thereof, to be as stated and expressed in a resolution or resolutions providing for the issue of such series adopted by the Board of Directors, subject to the limitations prescribed by law. The Board of Directors in any such resolution or resolutions is expressly authorized to state for each such series:
(i) the voting powers, if any, of the holders of stock of such series in addition to any voting rights affirmatively required by law;
(ii) the rights of shareholders in respect of dividends, including, without limitation, the rate or rates per annum and the time or times at which (or the formula or other method pursuant to which such rate or rates and such time or times may be determined) and conditions upon which the holders of stock of such series shall be entitled to receive dividends and other distributions, and whether any such dividends shall be cumulative or non-cumulative and, if cumulative, the terms upon which such dividends shall be cumulative;
(iii) whether the stock of each such series shall be redeemable by the Corporation at the option of the Corporation, the shareholders, or another person or upon the occurrence of a designated event, and, if redeemable, the terms and conditions upon which the stock of such series may be redeemed;
(iv) the amount payable and the rights or preferences to which the holders of the stock of such series shall be entitled upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation;
(v) the terms, if any, upon which shares of stock of such series shall be convertible into, or exchangeable for, shares of stock of any other class or classes or of any other series of the same or any other class or classes, including the price or prices or the rate or rates of conversion or exchange and the terms of adjustment, if any; and
(vi) any other designations, preferences, and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, so far as they are not inconsistent with the provisions of these Amended and Restated Articles of Incorporation and to the full extent now or hereafter permitted by the laws of the State of Nevada.
All shares of the Preferred Stock of any one series shall be identical to each other in all respects, except that shares of any one series issued at different times may differ as to the dates from which dividends thereon, if cumulative, shall be cumulative.
Subject to any limitations or restrictions stated in the resolution or resolutions of the Board of Directors originally fixing the number of shares constituting a series, the Board of Directors may by resolution or resolutions likewise adopted increase (but not above the total number of authorized shares of that class) or decrease (but not below the number of shares of the series then outstanding) the number of shares of the series subsequent to the issue of shares of that series; and in case the number of shares of any series shall be so decreased, the shares constituting the decrease shall resume that status that they had prior to the adoption of the resolution originally fixing the number of shares constituting such series.
(b) Common Stock. All shares of Common Stock shall be identical to each other in every respect. The shares of Common Stock shall entitle the holders thereof to one vote for each share on all matters on which shareholders have the right to vote. The holders of Common Stock shall not be permitted to cumulate their votes for the election of directors.
Subject to the preferences, privileges and powers with respect to each class or series of Capital Stock having any priority over the Common Stock, and the qualifications, limitations or restrictions thereof, the holders of the Common Stock shall have and possess all rights pertaining to the Capital Stock.
No holder of shares of Common Stock shall be entitled as such, as a matter of preemptive right, to subscribe for, purchase or otherwise acquire any part of any new or additional issue of stock of any class or series whatsoever of the Corporation, or of securities convertible into stock of any class or series whatsoever of the Corporation, or of any warrants or other instruments evidencing rights or options to subscribe for, purchase or otherwise acquire such stock or securities, whether now or hereafter authorized or whether issued for cash or other consideration or by way of dividend.
ARTICLE V
BOARD OF DIRECTORS
SECTION 1. NUMBER OF DIRECTORS. The number of directors of the Corporation shall be as determined by the Bylaws of the Corporation or by a majority vote of the Board of Directors. The number of directors of the Corporation may be increased or decreased only by a majority vote of the Board of Directors and the number of directors shall not be reduced to fewer than one (1).
SECTION 2. Classification of Board. Subject to the rights of any holders of any series of Preferred Stock that may be issued by the Corporation pursuant to a resolution or resolutions of the Board of Directors providing for such issuance, the directors of the Corporation shall be divided into three classes with respect to term of office, each class to contain, as near as may be possible, one-third of the entire number of the Board, with the terms of office of one class expiring each successive year. One class of directors shall be initially elected for a term expiring at the annual meeting of shareholders to be held in 2006, another class shall be initially elected for a term expiring at the annual meeting of shareholders to be held in 2007 and another class shall be initially elected for a term expiring at the annual meeting of shareholders to be held in 2008. At each annual meeting of shareholders, the successors to the class of directors (other than directors elected by holders of shares of one or more series of Preferred Stock) whose term expires at that time shall be elected by the shareholders to serve until the annual meeting of shareholders held three years next following and until their successors shall be elected and qualified.
In the event of any intervening changes in the authorized number of directors (other than directors elected by holders of shares of one or more series of Preferred Stock), the Board of Directors shall designate the class or classes to which the increases or decreases in directorships shall be apportioned in order to achieve, as near as maybe possible, equality of the number of directors among the classes; provided, however, that no such apportionment or redesignation shall shorten the term of any incumbent director.
SECTION 3. Vacancies. Subject to the limitations prescribed by law and these Amended and Restated Articles of Incorporation, all vacancies in the office of director, including vacancies created by newly created directorships resulting from an increase in the number of directors, shall be filled only by a vote of a majority of the directors then holding office, whether or not a quorum, and any director so elected shall serve for the remainder of the full term of the class of directors in which the new directorship was created or the vacancy occurred and until his or her successor shall be elected and qualified.
SECTION 4. Removal of Directors. Any or all of the directors may be removed by the shareholders of the Corporation at any time, and any such removal shall require the vote, in addition to any vote required by law, of not less than eighty percent (80%) of the total votes eligible to be cast by the holders of all outstanding shares of Capital Stock entitled to vote generally in the election of directors at a meeting of shareholders expressly called for that purpose.
SECTION 5. Evaluation of Acquisition Proposals. The Board of Directors of the Corporation, when evaluating any offer to the Corporation or to the shareholders of the Corporation from another party to (a) purchase for cash, or exchange any securities or property for any outstanding equity securities of the Corporation, (b) merge or consolidate the Corporation with another corporation, or (c) purchase or otherwise acquire all or substantially all of the properties and assets of the Corporation, shall, in connection with the exercise of its judgment in determining what is in the best interest of the Corporation and its shareholders, give due consideration not only to the price or other consideration being offered, but also to all other relevant factors including, without limitation, the long-term as well as short-term interests of the Corporation and its stockholders, including the possibility that these interests may be best served by the continued independence of the Corporation, the financial and managerial resources and future prospects of the other party, the possible effects on the business of the Corporation and its subsidiaries and on the employees, customers, suppliers and creditors of the Corporation and its subsidiaries, the economy of the state, region and nation and the effects on the communities in which the Corporation's and its subsidiaries' facilities are located.
SECTION 6. Power to Call Special Meeting of Shareholders. Special meetings of shareholders for any purpose may be called at any time only by resolution of a majority of the directors of the Corporation then in office, by resolution of a majority of the disinterested directors then in office, or upon written application, by shareholders holding at least eighty percent (80%) of the Capital Stock entitled to vote at the meeting.
ARTICLE VI
ACTION BY SHAREHOLDERS WITHOUT A MEETING
Shareholders may not authorize any corporate action or consent to any action except at a special or annual meeting of shareholders. Shareholders are expressly denied any right they may otherwise have to act by written consent without a meeting.
ARTICLE VII
CERTAIN BUSINESS COMBINATIONS
Higher Vote Required for Certain Business Combinations. The approval of
the holders of at least eighty percent (80%) of the outstanding shares of voting
stock of the Corporation is required in connection with certain "Business
Combinations" with an Interested Stockholder after the expiration of three years
after the date the person becomes an Interested Stockholder, except in cases
where the proposed Business Combination has been approved in advance by a
majority of those members of the Board of Directors who are unaffiliated with
the Interested Stockholder and who were directors prior to the time when the
Interested Stockholder became and Interested Stockholder. In addition, the
Business Combination must also satisfy any one of the following requirements:
(1) the Business Combination is approved by the Corporation's Board of Directors
prior to the date that the person first became an Interested Stockholder; (2)
the transaction by which the Interested Stockholder became an Interested
Stockholder was approved by the Corporation's Board of Directors prior to the
date such shares were purchased; (3) the Business Combination is approved by the
affirmative vote of the holders of stock representing a majority of the
outstanding voting power not beneficially owned by the Interested Stockholder
proposing the Business Combination, at a meeting duly called for that purpose no
earlier than three years after the date that the person first became an
Interested Stockholder; or (4) the consideration to be received by all the
holders of outstanding stock not beneficially owned by the Interested
Stockholder equals or exceeds thresholds set forth by the Nevada Revised
Statutes.
(a) "Business Combination" means:
(1) Any merger or consolidation of the Corporation with the interested stockholder, or any other corporation, which is, or after the merger or consolidation would be, an affiliate or associate of the interested stockholder.
(2) Any sale, lease, exchange, mortgage, pledge, transfer or other disposition, in one transaction or a series of transactions, to or with the interested stockholder or any affiliate or associate of the interested stockholder of the Corporation's assets or any of the Corporation's subsidiaries' assets:
(a) Having an aggregate market value equal to 5 percent or more of the aggregate market value of all the Corporation's assets, determined on a consolidated basis;
(b) Having an aggregate market value equal to 5 percent or more of the aggregate market value of all the Corporation's outstanding shares; or
(c) Representing 10 percent or more of the Corporation's earning power or net income, determined on a consolidated basis.
(3) The issuance or transfer by the Corporation or any of the Corporation's subsidiaries, in one transaction or a series of transactions, of the Corporation's shares or any of the Corporation's subsidiaries' shares that have an aggregate market value equal to 5 percent or more of the aggregate market value of all the Corporation's outstanding shares to the interested stockholder or any affiliate or associate of the interested stockholder except under the exercise of warrants or rights to purchase shares offered, or a dividend or distribution paid or made, pro rata to all the Corporation's stockholders.
(4) The adoption of any plan or proposal for the Corporation's liquidation or dissolution proposed by, or under any agreement, arrangement or understanding, whether or not in writing, with, the interested stockholder or any affiliate or associate of the interested stockholder.
(5) Any reclassification of securities, including, without limitation, any splitting of shares, dividend distributed in shares, or other distribution of shares with respect to other shares, or any issuance of new shares in exchange for a proportionately greater number of old shares, recapitalization, merger or consolidation of the Corporation with any of the Corporation's subsidiaries, or other transaction, with the interested stockholder or any affiliate or associate of the interested stockholder which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of the interested stockholder or any affiliate or associate of the interested stockholder, except as a result of immaterial changes because of adjustments of fractional shares.
(6) Any receipt by the interested stockholder or any affiliate or associate of the interested stockholder of the benefit, directly or indirectly, except proportionately as a stockholder, of any loan, advance, guarantee, pledge or other financial assistance or any tax credit or other tax advantage provided by or through the Corporation.
(b) "Interested stockholder," means any person, other than the Corporation, who is:
(a) The beneficial owner, directly or indirectly, of 10 percent or more of the voting power of the Corporation's outstanding voting shares; or
(b) An affiliate or associate of the Corporation and at any time within 3 years immediately before the date in question was the beneficial owner, directly or indirectly, of 10 percent or more of the voting power of the Corporation's then outstanding shares.
SECTION 2. Effect on Fiduciary Obligations of Interested Shareholders. Nothing contained in this Article VII shall be construed to relieve any Interested Shareholder from any fiduciary obligations imposed by law.
SECTION 3. Amendment, Repeal, Etc. Notwithstanding any other provisions of these Amended and Restated Articles of Incorporation or the Bylaws (and notwithstanding the fact that a lesser percentage may be specified by law, these Amended and Restated Articles of Incorporation or the Bylaws of the Corporation), in addition to any affirmative vote required by applicable law and any voting rights granted to or held by holders of Preferred Stock, any amendment, alteration, repeal or rescission of any provision of this Article VII must be approved by either (I) a majority of the authorized number of directors and, if one or more Interested Shareholders exist, by a majority of the Continuing Directors, or (ii) by the affirmative vote of not less than eighty percent (80%) of the total number of votes eligible to be cast by the holders of all outstanding shares of the Voting Stock, voting together as a single class, together with the affirmative vote of not less than fifty percent (50%) of the total number of votes eligible to be cast by the holders of all outstanding shares of the Voting Stock not beneficially owned by any Interested Shareholder or Affiliate or Associate thereof, voting together as a single class.
ARTICLE VIII
LIMITATION OF DIRECTOR LIABILITY
A director of the Corporation shall not be personally liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is expressly prohibited by the Nevada Revised Statutes as the same exists or may hereafter be amended.
A director of the Corporation shall, in the performance of his or her duties, be fully protected from liability in relying in good faith upon the records of the corporation and upon such information, opinions, reports or statements presented to the corporation by any of the corporation's officers or employees, or committees of the board of directors, or by any other person as to matters the director believes are within such other person's professional or expert competence and who has been selected with reasonable care by or on behalf of the corporation.
Any amendment, termination or repeal of this Article IX or any provisions hereof shall not adversely affect or diminish in any way any right or protection of a director of the Corporation existing with respect to any act or omission occurring prior to the time of the final adoption of such amendment, termination or repeal.
In addition to any requirements of law or of any other provisions of these Amended and Restated Articles of Incorporation, the affirmative vote of the holders of not less than eighty percent (80%) of the total number of votes eligible to be cast by the holders of all outstanding shares of Capital Stock entitled to vote thereon shall be required to amend, alter, rescind or repeal any provision of this Article VIII.
ARTICLE IX
INDEMNIFICATION
SECTION 1. Actions, Suits or Proceedings Other than by or in the Right
of the Corporation. To the fullest extent permitted by the Nevada Revised
Statutes, the Corporation shall indemnify any person who is or was or has agreed
to become a director or officer of the Corporation who was or is made a party to
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 or she is or was or has agreed to become a director
or officer of the Corporation, or is or was serving or has agreed to serve at
the written request of the Corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
or by reason of any action alleged to have been taken or omitted in such
capacity, and the Corporation may indemnify any other person who is or was or
has agreed to become an employee or agent of the Corporation who was or is made
a party to 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 or she is or was or has agreed to become an employee
or agent of the Corporation, or is or was serving or has agreed to serve at the
written request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, or
by reason of any action alleged to have been taken or omitted in such capacity,
against costs, charges, expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her or
on his or her behalf in connection with such action, suit or proceeding and any
appeal therefrom, if he or she acted in good faith and in a manner he or she
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 or her 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
or she 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 or her conduct was unlawful.
Notwithstanding anything contained in this Article IX, the Corporation shall not
be obligated to indemnify any director, officer, employee or agent in connection
with an action, suit or proceeding, or part thereof, initiated by such person
against the Corporation unless such action, suit or proceeding, or part thereof,
was authorized or consented to by the Board of Directors.
SECTION 2. Actions or Suits by or in the Right of the Corporation. To the fullest extent permitted by the Nevada Revised Statutes, the Corporation shall indemnify any person who is or was or has agreed to become a director or officer of the Corporation 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 or she is or was or has agreed to become a director or officer of the Corporation, or is or was serving or has agreed to serve at the written request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, and the Corporation may indemnify any other person who is or was or has agreed to become an employee or agent of the Corporation who was or is made 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 or she is or was or has agreed to become an employee or agent of the Corporation, or is or was serving or has agreed to serve at the written request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against costs, charges and expenses (including attorneys' fees) actually and reasonably incurred by him or her or on his or her behalf in connection with the defense or settlement of such action or suit and any appeal therefrom, if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation, except 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 or other court of competent jurisdiction shall determine upon application that, despite the adjudication of such liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such costs, charges and expenses as the Court deems proper. Notwithstanding anything contained in this Article IV, the Corporation shall not be obligated to indemnify any director, officer, employee or agent in connection with an action or suit, or part thereof, initiated by such person against the Corporation unless such action or suit, or part thereof, was authorized or consented to by the Board of Directors.
SECTION 3. Indemnification for Costs, Charges and Expenses of a Successful Party. To the extent that a director, officer, employee or agent of the Corporation has been successful, on the merits or otherwise (including, without limitation, the dismissal of an action without prejudice), in defense of any action, suit or proceeding referred to in Section 1 or 2 of this Article IX, or in defense of any claim, issue or matter therein, such person shall be indemnified against all costs, charges and expenses (including attorneys' fees) actually and reasonably incurred by such person or on such person's behalf in connection therewith.
SECTION 4. Indemnification for Expenses of a Witness. To the extent that any person who is or was or has agreed to become a director or officer of the Corporation is made a witness to any action, suit or proceeding to which he or she is not a party by reason of the fact that he or she was, is or has agreed to become a director or officer of the Corporation, or is or was serving or has agreed to serve as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, at the written request of the Corporation, such person shall be indemnified against all costs, charges and expenses actually and reasonably incurred by such person or on such person's behalf in connection therewith.
To the extent that any person who is or was or has agreed to become an employee or agent of the Corporation is made a witness to any action, suit or proceeding to which he or she is not a party by reason of the fact that he or she was, is or has agreed to become an employee or agent of the Corporation, or is or was serving or has agreed to serve as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, at the written request of the Corporation, such person may be indemnified against all costs, charges and expenses actually and reasonably incurred by such person or on such person's behalf in connection therewith.
SECTION 5. Determination of Right to Indemnification. Any indemnification under Section 1 or 2 of this Article IX (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, officer, employee or agent is proper under the circumstances because he or she has met the applicable standard of conduct set forth in Section 1 or 2 of this Article IX. Any indemnification under Section 4 of this Article IX (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, officer, employee or agent is proper under the circumstances. At the election of the Board of Directors, such determinations shall be made (a) by the Board of Directors acting by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (b) if a quorum of disinterested directors so directs or if such a quorum is not obtainable, by independent legal counsel in a written opinion, or (c) by the shareholders. To obtain indemnification under this Article IX, any person referred to in Section 1, 2, 3 or 4 of this Article IX shall submit to the Corporation a written request, including therewith such documents as are reasonably available to such person and are reasonably necessary to determine whether and to what extent such person is entitled to indemnification.
SECTION 6. Advancement of Costs, Charges and Expenses. Costs, charges and expenses (including attorneys' fees) incurred by or on behalf of a director or officer in defending a civil or criminal action, suit or proceeding referred to in Section 1 or 2 of this Article IX shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding; provided, however, that the payment of such costs, charges and expenses incurred by or on behalf of a director or officer in advance of the final disposition of such action, suit or proceeding shall be made only upon receipt of a written undertaking by or on behalf of the director or officer to repay all amounts so advanced in the event that it shall ultimately be determined that such director or officer is not entitled to be indemnified by the Corporation as authorized in this Article IX or by law. No security shall be required for such undertaking and such undertaking shall be accepted without reference to the recipient's financial ability to make repayment. The majority of the directors who were not parties to such action, suit or proceeding may, upon approval of such director or officer of the Corporation, authorize the Corporation's counsel to represent such person, in any action, suit or proceeding, whether or not the Corporation is a party to such action, suit or proceeding.
SECTION 7. Procedure for Indemnification. Any indemnification under
Section 1, 2, 3 or 4 of this Article IX or advancement of costs, charges and
expenses under Section 6 of this Article IX shall be made promptly, and in any
event within sixty (60) days (except indemnification to be determined by
shareholders which will be determined at the next annual meeting of
shareholders), upon the written request of the director, officer, employee or
agent. The right to indemnification or advancement of expenses as granted by
this Article IX shall be enforceable by the director, officer, employee or agent
in any court of competent jurisdiction, if the Corporation denies such request,
in whole or in part, or if no disposition of such request is made within sixty
(60) days of the request. Such person's costs, charges and expenses incurred in
connection with successfully establishing his or her right to indemnification or
advancement, to the extent successful, in any such action shall also be
indemnified by the Corporation. It shall be a defense to any such action (other
than an action brought to enforce a claim for the advancement of costs, charges
and expenses under Section 6 of this Article IX where the required undertaking,
if any, has been received by the Corporation) that the claimant has not met the
standard of conduct set forth in Section 1 or 2 of this Article IX, but the
burden of proving such defense shall be on the Corporation. Neither the failure
of the Corporation (including its Board of Directors, its independent legal
counsel and its shareholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in Section 1 or 2 of this Article IX, nor the fact that there has been
an actual determination by the Corporation (including its Board of Directors,
its independent legal counsel and its shareholders) that the claimant has not
met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
SECTION 8. Settlement. The Corporation shall not be obligated to reimburse the costs, charges and expenses of any settlement to which it has not agreed. If in any action, suit or proceeding (including any appeal) within the scope of Section 1 or 2 of this Article IX, the person to be indemnified shall have unreasonably failed to enter into a settlement thereof offered or assented to by the opposing party or parties in such action, suit or proceeding, then, notwithstanding any other provision of this Article IX, the indemnification obligation of the Corporation to such person in connection with such action, suit or proceeding shall not exceed the total of the amount at which settlement could have been made and the expenses incurred by or on behalf of such person prior to the time such settlement could reasonably have been effected.
SECTION 9. Other Rights; Continuation of Right to Indemnification; Individual Contracts. The indemnification and advancement of costs, charges and expenses provided by or granted pursuant to this Article IX shall not be deemed exclusive of any other rights to which those persons seeking indemnification or advancement of costs, charges and expenses may be entitled under law (common or statutory) or any Bylaw, agreement, policy of indemnification insurance or vote of shareholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in any other capacity while holding office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the legatees, heirs, distributees, executors and administrators of such person. Nothing contained in this Article IX shall be deemed to prohibit the Corporation from entering into, and the Corporation is specifically authorized to enter into, agreements with directors, officers, employees and agents providing indemnification rights and procedures different from those set forth herein. All rights to indemnification under this Article IX shall be deemed to be a contract between the Corporation and each director, officer, employee or agent of the Corporation who serves or served in such capacity (or at the written request of the Corporation, in the capacity of director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise) at any time while this Article IX is in effect.
SECTION 10. Savings Clause. If this Article IX or any portion shall be invalidated on any ground by any court of competent jurisdiction, the Corporation shall nevertheless indemnify each director or officer, and may indemnify each employee or agent, of the Corporation as to any costs, charges, expenses (including attorneys' fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative (including an action by or in the right of the Corporation), to the full extent permitted by any applicable portion of this Article IX that shall not have been invalidated and to the full extent permitted by applicable law.
SECTION 11. Insurance. The Corporation may purchase and maintain insurance, at its expense, to protect itself and any person who is or was a director, officer, employee or agent of the Corporation or who is or was serving at the written request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any costs, charges or expenses, liability or loss incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify such person against such costs, charges or expenses, liability or loss under the Amended and Restated Articles of Incorporation or applicable law; provided, however, that such insurance is available on acceptable terms as determined by a vote of a majority of the Board. To the extent that any director, officer, employee or agent is reimbursed by an insurance company under an indemnification insurance policy for any costs, charges, expenses (including attorneys' fees), judgments, fines and amounts paid in settlement to the fullest extent permitted by any applicable portion of this Article IX, the Bylaws, any agreement, the policy of indemnification insurance or otherwise, the Corporation shall not be obligated to reimburse the person to be indemnified in connection with such proceeding.
SECTION 12. Definitions. For purposes of this Article IX, the following terms shall have the following meanings:
(a) "The Corporation" shall include any constituent corporation (including any constituent of a constituent) absorbed by way of an acquisition, consolidation, merger or otherwise, which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employee or agent so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the written request of such constituent corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article IX with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued;
(b) "Other enterprises" shall include employee benefit plans, including, but not limited to, any employee benefit plan of the Corporation;
(c) "Director or officer" of the Corporation shall include any partner or trustee who is or was or has agreed to serve at the written request of the Corporation as a partner or trustee of another corporation, partnership, joint venture, trust or other enterprise;
(d) "Serving at the written request of the Corporation" shall include any service that imposes duties on, or involves services by a director, officer, employee or agent of the Corporation with respect to an employee benefit plan, its participants or beneficiaries, including acting as a fiduciary thereof;
(e) "Fines" shall include any penalties and any excise or similar taxes assessed on a person with respect to an employee benefit plan;
(f) A person shall be deemed to have acted in "good faith and in a manner he or she 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 or her conduct was unlawful," if his or her action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him or her 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; and
(g) A person shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation," as referred to in Sections 1 and 2 of this Article IX if such person acted in good faith and in a manner he or she reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan.
SECTION 13. Subsequent Amendment and Subsequent Legislation. Neither the amendment, termination or repeal of this Article IX or of relevant provisions of the Nevada Revised Statutes or any other applicable laws, nor the adoption of any provision of these Amended and Restated Articles of Incorporation or the Bylaws of the Corporation or of any statute inconsistent with this Article IX shall eliminate, affect or diminish in any way the rights of any director, officer, employee or agent of the Corporation to indemnification under the provisions of this Article IX with respect to any action, suit or proceeding arising out of, or relating to, any actions, transactions or facts occurring prior to the final adoption of such amendment, termination or repeal.
If the Nevada Revised Statutes is amended to expand further the indemnification permitted to directors, officers, employees or agents of the Corporation, then the Corporation shall indemnify such persons to the fullest extent permitted by the Nevada Revised Statutes, as so amended.
ARTICLE X
AMENDMENTS
SECTION 1. Amendments of Articles of Incorporation. In addition to any affirmative vote required by applicable law and any voting rights granted to or held by holders of Preferred Stock, any alteration, amendment, repeal or rescission (collectively, any "Change") of any provision of these Amended and Restated Articles of Incorporation must be approved by the affirmative vote of the holders of at least eighty percent (80%) (or such greater proportion as may otherwise be required pursuant to any specific provision of this Amended and Restated Articles of Incorporation) of the total votes eligible to be cast by the holders of all outstanding shares of Capital Stock entitled to vote thereon; provided, however, that if a majority of the Board of Directors recommends the Change, then such Change shall only require the affirmative vote of the holders of a majority of the total votes eligible to be cast by the holders of all outstanding shares of Capital Stock entitled to vote thereon. Subject to the foregoing, the Corporation reserves the right to amend this Amended and Restated Articles of Incorporation from time to time in any and as many respects as may be desired and as may be lawfully contained in an original articles of incorporation filed at the time of making such amendment.
Except as may otherwise be provided in this Amended and Restated Articles of Incorporation, the Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation, and to add or insert herein any other provisions authorized by the laws of the State of Nevada at the time in force, in the manner now or hereafter prescribed by law, and all rights, preferences and privileges of any nature conferred upon shareholders, directors or any other persons whomsoever by and pursuant to these Amended and Restated Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this Section 1.
SECTION 2. Amendments of Bylaws. In furtherance and not in limitation of the powers conferred by statute, the Board of Directors of the Corporation may make, alter, amend, rescind or repeal from time to time any of the Bylaws of the Corporation by the affirmative vote of the Board of Directors. Any Bylaw may be altered, amended, rescinded, or repealed by the holders of 80% shares of Capital Stock entitled to vote thereon at any annual meeting or at any special meeting called for that purpose. Notwithstanding the foregoing, any provision of the Bylaws that contains a supermajority voting requirement shall only be altered, amended, rescinded, or repealed by a vote of the Board or holders of shares of Capital Stock entitled to vote thereon that is not less than the supermajority specified in such provision.
ARTICLE XI
NOTICES
The name and mailing address of the incorporator of this Corporation is:
Coffee Holding Co., Inc.
Attention: Andrew Gordon, President and Chief Executive Officer
4401 First Avenue
Brooklyn, NY 11232-0005
Coffee Holding Co., Inc. has caused these Amended and Restated Articles of Incorporation to be signed by Andrew Gordon, President and Chief Executive Officer of Coffee Holding Co., Inc., this 29th day of April, 2005, and the Amended and Restated Articles have been approved by 81.8% of those entitled to vote (3,259,600 out of 3,986,136 votes entitled to vote voted in favor of the amendments).
COFFEE HOLDING CO., INC.
(Incorporator)
By: /s/ Andrew Gordon
-------------------------------------
Andrew Gordon
President and Chief Executive Officer
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Exhibit 3.2
BYLAWS
OF
COFFEE HOLDING CO., INC.
TABLE OF CONTENTS
Page
----
ARTICLE I OFFICES..............................................................1
Section 1. Registered Office......................................1
Section 2. Additional Offices.....................................1
ARTICLE II STOCKHOLDERS........................................................1
Section 1. Place of Meetings......................................1
Section 2. Annual Meetings........................................1
Section 3. Special Meetings.......................................1
Section 4. Notice of Meetings.....................................1
Section 5. Waiver of Notice.......................................2
Section 6. Fixing of Record Date..................................2
Section 7. Quorum.................................................2
Section 8. Conduct of Meetings....................................3
Section 9. Voting; Proxies........................................3
Section 10. Inspectors of Election.................................4
Section 11. Procedure for Nominations..............................4
Section 12. Substitution of Nominees...............................5
Section 13. New Business...........................................5
ARTICLE III CAPITAL STOCK......................................................6
Section 1. Certificates of Stock..................................6
Section 2. Transfer Agent and Registrar...........................6
Section 3. Registration and Transfer of Shares....................6
Section 4. Lost, Destroyed and Mutilated Certificates.............7
Section 5. Holder of Record.......................................7
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ARTICLE IV BOARD OF DIRECTORS..................................................7
Section 1. Responsibilities; Number of Directors..................7
Section 2. Qualifications.........................................8
Section 3. Regular and Annual Meetings............................8
Section 4. Special Meetings.......................................8
Section 5. Notice of Meetings; Waiver of Notice...................8
Section 6. Conduct of Meetings....................................8
Section 7. Quorum and Voting Requirements.........................9
Section 8. Informal Action by Directors...........................9
Section 9. Resignation............................................9
Section 10. Vacancies..............................................9
Section 11. Compensation...........................................9
Section 12. Amendments Concerning the Board........................9
ARTICLE V COMMITTEES..........................................................10
Section 1. Standing Committees...................................10
Section 2. Audit Committee.......................................10
Section 3. Nominating and Corporate Governance Committee.........10
Section 4. Compensation Committee................................11
Section 5. Other Committees......................................11
ARTICLE VI OFFICERS...........................................................11
Section 1. Generally.............................................11
Section 2. President and Chief Executive Officer.................12
Section 3. Vice President........................................12
Section 4. Secretary.............................................12
Section 5. Compensation of Officers and Others...................12
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ARTICLE VII DIVIDENDS.........................................................12
ARTICLE VIII NOTICES..........................................................13
Section 1. Notices...............................................13
Section 2. Waivers...............................................13
ARTICLE IX MISCELLANEOUS......................................................13
Section 1. Facsimile Signatures..................................13
Section 2. Corporate Seal........................................13
Section 3. Reliance Upon Books, Reports and Records..............13
Section 4. Fiscal Year...........................................14
Section 5. Time Periods..........................................14
ARTICLE X AMENDMENTS..........................................................14
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BYLAWS
OF
COFFEE HOLDING CO., INC.
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office of Coffee Holding Co., Inc. (the "Corporation") in the State of Nevada shall be located at 502 East John Street, Carson City, Nevada 89706.
SECTION 2. Additional Offices. The Corporation may also have offices and places of business at such other places, within or without the State of Nevada, as the Board of Directors (the "Board") may from time to time designate or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
SECTION 1. Place of Meetings. Meetings of stockholders of the Corporation shall be held at such place, within or without the State of Nevada, as may be fixed by the Board and designated in the notice of meeting. If no place is so fixed, such meetings shall be held at the principal administrative office of the Corporation.
SECTION 2. Annual Meetings. The annual meeting of stockholders of the Corporation for the election of directors and the transaction of any other business which may properly come before such meeting shall be held each year on a date and at a time to be designated by the Board.
SECTION 3. Special Meetings. Special meetings of stockholders, for any purpose, may be called at any time by resolution of a majority of the Board then in office or the affirmative vote of a majority of the disinterested directors then in office. Special meetings may also be called, upon written application, by stockholders holding at least eighty percent (80%) of the capital stock entitled to vote at the meeting. Special meetings shall be held on the date and at the time and place as may be designated by the Board. At a special meeting, no business shall be transacted and no corporate action shall be taken other than that stated in the notice of meeting.
SECTION 4. Notice of Meetings. Except as otherwise required by law, written notice, signed by the President or a Vice-President, or the officer or persons calling the meeting, stating the place, date and hour and the purpose or purposes for which the meeting is called, shall be delivered to each stockholder of record entitled to vote at such meeting, either personally, by mail, or by other means of written communication, charges prepaid, not less than ten (10) nor more than sixty (60) days before the date of such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the U.S. mail, with postage thereon prepaid, addressed to the stockholder at his or her address as it appears on the stock transfer books or records of the Corporation as of the record date prescribed in Section 6 of this Article II. When any meeting of stockholders, either annual or special, is adjourned to another date, time or place, no notice of the adjourned meeting need be given, other than an announcement at the meeting at which such adjournment is taken giving the date, time and place to which the meeting is adjourned; provided, however, that if a new record date is fixed for the adjourned meeting, notice of the adjourned meeting must be given to each stockholder of record as of the new record date.
SECTION 5. Waiver of Notice. Notice of any annual or special meeting need not be given to any stockholder who submits a signed waiver of notice of any meeting, in person or by proxy or by his or her duly authorized attorney-in-fact, whether before or after the meeting. The attendance of any stockholder at a meeting, in person or by proxy, shall constitute a waiver of notice by such stockholder, except where a stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.
SECTION 6. Fixing of Record Date. For the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or stockholders entitled to receive payment of any dividend or other distribution or the allotment of any rights, or in order to make a determination of stockholders for any other proper purpose, the Board shall fix a date as the record date for any such determination of stockholders, which date shall not precede the date upon which the resolution fixing the record date is adopted by the Board. Such date in any case shall be not more than sixty (60) days and, in the case of a meeting of stockholders, not less than ten (10) days prior to the date on which the particular action requiring such determination of stockholders is to be taken. When a determination of stockholders entitled to vote at any meeting of stockholders has been made as provided in this Section 6, such determination shall, unless otherwise provided by the Board, also apply to any adjournment thereof. If a record date is not fixed, the record date is at the close of business on the day before the day on which the first notice is given or, if notice is waived, at the close of business on the day before the meeting is held. The Board must fix a new record date, if the meeting is adjourned to a date more than sixty (60) days later than the date set for the original meeting.
SECTION 7. Quorum. The holders of record of a majority of the total number of votes eligible to be cast by the holders of the outstanding shares of the capital stock of the Corporation entitled to vote thereat, represented in person or by proxy, shall constitute a quorum for the transaction of business at a meeting of stockholders, except as otherwise provided by law, these Bylaws or the Amended and Restated Articles of Incorporation. If however, such quorum shall not be present or represented at any meeting of the stockholders, a majority of the stockholders entitled to vote thereat, present in person or represented by proxy, shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting. At such adjourned meeting at which quorum shall be present and represented, any business may be transacted which might have been transacted at the meeting as originally called. When a quorum is once present to organize a meeting of stockholders, such quorum is not broken by the subsequent withdrawal of any stockholders.
SECTION 8. Conduct of Meetings. The Chairman of the Board shall serve as Chairman at all meetings of the stockholders or, if the Chairman of the Board is absent or otherwise unable to so serve, the Vice Chairman of the Board shall serve as Chairman at any meeting of stockholders held in such absence. If the Chairman of the Board and the Vice Chairman of the Board are absent or otherwise unable to serve, the President shall serve as Chairman at any meeting of stockholders held in such absence. The Secretary or, in his or her absence, such other person as the Chairman of the meeting shall appoint, shall serve as secretary of the meeting. The Chairman of the meeting shall conduct all meetings of the stockholders in accordance with the best interests of the Corporation and shall have the authority and discretion to establish reasonable procedural rules for the conduct of such meetings, including such regulation of the manner of voting and the conduct of discussion as he or she shall deem appropriate.
SECTION 9. Voting; Proxies. Each stockholder entitled to vote at any meeting may vote either in person or by proxy. Unless otherwise specified in the Amended and Restated Articles of Incorporation or in a resolution, or resolutions, of the Board providing for the issuance of preferred stock, each stockholder entitled to vote shall be entitled to one vote for each share of capital stock registered in his or her name on the transfer books or records of the Corporation. Each stockholder entitled to vote may authorize another person or persons to act for him or her by proxy. All proxies shall be in writing, signed by the stockholder or by his or her duly authorized attorney-in-fact, and shall be filed with the Secretary before being voted; provided that no such proxy shall be valid after the expiration of six months from the date of its execution unless the person executing it specifies in it the length of time for which it is to continue in force, which in no event shall exceed seven (7) years. Any duly executed proxy is not revoked and continues in full force and effect until another instrument or transmission revoking it or a properly created proxy bearing a later date is filed with or transmitted to the Secretary of the Corporation or another person or persons appointed by the Corporation to count the votes of stockholders and determine the validity of proxies and ballots. The attendance at any meeting by a stockholder who shall have previously given a proxy applicable thereto shall not, as such, have the effect of revoking the proxy. Except for the election of directors or as otherwise provided by law, the Amended and Restated Articles of Incorporation or these Bylaws, at all meetings of stockholders, all matters shall be determining by a vote of the holders of a majority of the number of votes eligible to be cast by the holders of the outstanding shares of capital stock of the Corporation present and entitled to vote thereat. Directors shall, except as otherwise required by law, these Bylaws or the Amended and Restated Articles of Incorporation, be elected by a plurality of the votes cast by each class of shares entitled to vote at a meeting of stockholders, present and entitled to vote in the election.
SECTION 10. Inspectors of Election. In advance of any meeting of stockholders, the Board shall appoint one or more persons, other than officers, directors or nominees for office, as inspectors of election to act at such meeting or any adjournment thereof. Such appointment shall not be altered at the meeting. If inspectors of election are not so appointed, the Chairman of the meeting shall make such appointment at the meeting. If any person appointed as inspector fails to appear or fails or refuses to act at the meeting, the vacancy so created may be filled by appointment by the Board in advance of the meeting or at the meeting by the Chairman of the meeting. The duties of the inspectors of election shall include determining the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, the validity and effect of proxies, receiving votes, ballots or consents, hearing and deciding all challenges and questions arising in connection with the right to vote, counting and tabulating all votes, ballots or consents, determining the results and doing such acts as are proper to the conduct of the election or the vote with fairness to all stockholders. Any report or certificate made by them shall be prima facie evidence of the facts stated and of the vote as certified by them. Each inspector shall be entitled to a reasonable compensation for his or her services, to be paid by the Corporation.
SECTION 11. Procedure for Nominations. Subject to the provisions
hereof, the Board, or a committee thereof, shall select nominees for election as
directors. Except in the case of a nominee substituted as a result of the death,
incapacity, withdrawal or other inability to serve of a nominee, the Board, or a
committee thereof, shall deliver written nominations to the Secretary at least
ninety (90) days prior to the date of the annual meeting. Provided the Board, or
committee thereof, makes such nominations, no nominations for directors except
those made by the Board or such committee shall be voted upon at the annual
meeting of stockholders unless other nominations by stockholders are made in
accordance with the provisions of this Section 11. Nominations of individuals
for election to the Board at an annual meeting of stockholders may be made by
any stockholder of record of the Corporation entitled to vote for the election
of directors at such meeting who provides timely notice in writing to the
Secretary as set forth in this Section 11. To be timely, a stockholder's notice
must be delivered to or received by the Secretary not later than the following
dates: (i) with respect to an election of directors to be held at an annual
meeting of stockholders, ninety (90) days in advance of the anniversary of the
previous year's annual meeting if the current year's meeting is to be held with
thirty (30) days prior to, on the anniversary date of, or after the anniversary
of the previous year's annual meeting; and (ii) with respect to an election to
be held at an annual meeting of stockholders held at a time other than within
the time periods set forth in the immediately preceding clause (i), or at a
special meeting of stockholders for the election of directors, the close of
business on the tenth (10th) day following the date on which notice of such
meeting is first given to stockholders. For purposes of this Section 11, notice
shall be deemed to first be given to stockholders when disclosure of such date
of the meeting of stockholders is first made in a press release reported to Dow
Jones News Services, Associated Press or comparable national news service, or in
a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of
1934, as amended. 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 such
person, (ii) the principal occupation or employment of such person, (iii) such
person's written consent to serve as a director, if elected, and (iv) such other
information regarding each nominee proposed by such stockholder as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission (whether or not the Corporation is
then subject to such rules); and (b) as to the stockholder giving the notice (i)
the name and address of such stockholder, (ii) the class and number of shares of
the Corporation which are owned of record by such stockholder and the dates upon
which he or she acquired such shares, (iii) a description of all arrangements or
understandings between the stockholder and nominee and any other person or
persons (naming such person or persons) pursuant to which the nominations are to
be made by the stockholder and (iv) the identification of any person employed,
retained or to be compensated by the stockholder submitting the nomination or by
the person nominated, or any person acting on his or her behalf to make
solicitations or recommendations to stockholders for the purpose of assisting in
the election of such director, and a brief description of the terms of such
employment, retainer or arrangement for compensation. At the request of the
Board, any person nominated by the Board for election as a director shall
furnish to the Secretary that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee together with
the required written consent. No person shall be elected as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 11.
The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not properly brought before the meeting in accordance with the provisions hereof, and, if he should so determine, he shall declare to the meeting that such nomination was not properly brought before the meeting and shall not be considered.
SECTION 12. Substitution of Nominees. In the event that a person is validly designated as a nominee in accordance with Section 11 of this Article II and shall thereafter become unwilling or unable to stand for election to the Board, the Board or a committee thereof may designate a substitute nominee upon delivery, not fewer than five (5) days prior to the date of the meeting for the election of such nominee, of a written notice to the Secretary setting forth such information regarding such substitute nominee as would have been required to be delivered to the Secretary pursuant to Section 11 of this Article II had such substitute nominee been initially proposed as a nominee. Such notice shall include a signed consent to serve as a director of the Corporation, if elected, of each such substituted nominee.
SECTION 13. New Business. Any new business to be taken up at the
annual meeting at the request of the Chairman of the Board or the President or
by resolution of at least three-fourths of the directors then in office shall be
stated in writing and filed with the Secretary at least fifteen (15) days before
the date of the annual meeting, and all business so stated, proposed and filed
shall be considered at the annual meeting, but, except as provided in this
Section 13, no other proposal shall be acted upon at the annual meeting. Any
proposal offered by any stockholder may be made at the annual meeting and the
same may be discussed and considered, but unless properly brought before the
meeting such proposal shall not be acted upon at the meeting. For a proposal to
be properly brought before an annual meeting by a stockholder, the stockholder
must be a stockholder of record and have given timely notice thereof in writing
to the Secretary. To be timely, a stockholder's notice must be delivered to or
received by the Secretary not later than the following dates: (i) with respect
to an annual meeting of stockholders, ninety (90) days in advance of the
previous year's annual meeting if the current year's meeting is to be held with
thirty (30) days prior to, on the anniversary date of, or after the anniversary
of the previous year's annual meeting; and (ii) with respect to an annual
meeting of stockholders held at a time other than within the time periods set
forth in the immediately preceding clause (i), the close of business on the
tenth (10th) day following the date on which notice of such meeting is first
given to stockholders. For purposes of this Section 13, notice shall be deemed
to first be given to stockholders when disclosure of such date of the meeting of
stockholders is first made in a press release reported to Dow Jones News
Services, Associated Press or comparable national news service, or in a document
publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, as
amended. A stockholder's notice to the Secretary shall set forth as to the
matter the stockholder proposes to bring before the annual meeting (a) a brief
description of the proposal desired to be brought before the annual meeting; (b)
the name and address of the stockholder proposing such business; (c) the class
and number of shares of the Corporation which are owned of record by the
stockholder and the dates upon which he or she acquired such shares; (d) the
identification of any person employed, retained, or to be compensated by the
stockholder submitting the proposal, or any person acting on his or her behalf,
to make solicitations or recommendations to stockholders for the purpose of
assisting in the passage of such proposal, and a brief description of the terms
of such employment, retainer or arrangement for compensation; and (e) such other
information regarding such proposal as would be required to be included in a
proxy statement filed pursuant to the proxy rules of the Securities and Exchange
Commission or required to be delivered to the Corporation pursuant to the proxy
rules of the Securities and Exchange Commission (whether or not the Corporation
is then subject to such rules). This provision shall not prevent the
consideration and approval or disapproval at an annual meeting of reports of
officers, directors and committees of the Board or the management of the
Corporation, but in connection with such reports, no new business shall be acted
upon at such annual meeting unless stated and filed as herein provided. This
provision shall not constitute a waiver of any right of the Corporation under
the proxy rules of the Securities and Exchange Commission or any other rule or
regulation to omit a stockholder's proposal from the Corporation's proxy
materials.
The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that any new business was not properly brought before the meeting in accordance with the provisions hereof, and, if the Chairman should so determine, the Chairman shall declare to the meeting that such new business was not properly brought before the meeting and shall not be considered.
ARTICLE III
CAPITAL STOCK
SECTION 1. Certificates of Stock. Certificates representing shares of stock shall be in such form as shall be determined by the Board. Each certificate shall state that the Corporation will furnish to any stockholder upon request and without charge a statement of the powers, designations, preferences and relative, participating, optional or other special rights of the shares of each class or series of stock and the qualifications or restrictions of such preferences and/or rights, or shall set forth such statement on the certificate itself. The certificates shall be numbered in the order of their issue and entered in the books of the Corporation or its transfer agent or agents as they are issued. Each certificate shall state the registered holder's name and the number and class of shares and shall be signed by President and the Secretary or any Assistant Secretary, and may, but need not, bear the seal of the Corporation or a facsimile thereof. Any or all of the signatures on the certificates may be facsimiles. In case any officer who shall have signed any such certificate shall cease to be such officer of the Corporation, whether because of death, resignation or otherwise, before such certificate shall have been delivered by the Corporation, such certificate may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates had not ceased to be such officer or officers of the Corporation.
SECTION 2. Transfer Agent and Registrar. The Board shall have the power to appoint one or more Transfer Agents and Registrars for the transfer and registration of certificates of stock of any class and may require that stock certificates be countersigned and registered by one or more of such Transfer Agents and Registrars.
SECTION 3. Registration and Transfer of Shares. Subject to the provisions of the Amended and Restated Articles of Incorporation of the Corporation, the name of each person owning a share of the capital stock of the Corporation shall be entered on the books of the Corporation together with the number of shares held by him or her, the numbers of the certificates covering such shares and the dates of issue of such certificates. Subject to the provisions of the Amended and Restated Articles of Incorporation of the Corporation, the shares of stock of the Corporation shall be transferable on the books of the Corporation by the holders thereof in person, or by their duly authorized attorneys or legal representatives, on surrender and cancellation of certificates for a like number of shares, accompanied by an assignment or power of transfer endorsed thereon or attached thereto, duly executed, with such guarantee or proof of the authenticity of the signature as the Corporation or its agents may reasonably require and with proper evidence of payment of any applicable transfer taxes. Subject to the provisions of the Amended and Restated Articles of Incorporation of the Corporation, a record shall be made of each transfer.
SECTION 4. Lost, Destroyed and Mutilated Certificates. The holder of any shares of stock of the Corporation shall immediately notify the Corporation of any loss, theft, destruction or mutilation of the certificates therefor. The Corporation may issue, or cause to be issued, a new certificate of stock in the place of any certificate theretofore issued by it alleged to have been lost, stolen or destroyed upon evidence satisfactory to the Corporation of the loss, theft or destruction of the certificate and, in the case of mutilation, the surrender of the mutilated certificate. The Corporation may, in its discretion, require the owner of the lost, stolen or destroyed certificate, or his or her legal representatives, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft, destruction or mutilation of any such certificate and the issuance of such new certificate, or may refer such owner to such remedy or remedies as he or she may have under the laws of the State of Nevada.
SECTION 5. Holder of Record. Subject to the provisions of the Amended and Restated Articles of Incorporation of the Corporation, the Corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder thereof in fact and shall not be bound to recognize any equitable or other claim to or interest in such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by law.
ARTICLE IV
BOARD OF DIRECTORS
SECTION 1. Responsibilities; Number of Directors. Subject only to limitations of the Amended and Restated Articles of Incorporation and the Nevada Revised Statutes, the business and affairs of the Corporation shall be under the direction of the Board. The number of directors shall be determined only by resolution of the Board. Subject to the rights of any holders of any series of Preferred Stock that may be issued by the Corporation pursuant to a resolution or resolutions of the Board of Directors providing for such issuance, the directors of the Corporation shall be divided into three classes with respect to term of office, each class to contain, as near as may be possible, one-third of the entire number of the Board, with the terms of office of one class expiring each successive year. At each annual meeting of shareholders, the successors to the class of directors (other than directors elected by holders of shares of one or more series of Preferred Stock) whose term expires at that time shall be elected by the shareholders to serve until the annual meeting of shareholders held three years next following and until their successors shall be elected and qualified. A Chairman of the Board shall be appointed annually by the duly elected members of the board of directors. A majority of the entire board shall be persons other than officers or employees of the Corporation or its subsidiaries and shall not have a relationship which, in the opinion of the Board, could interfere with the exercise of independent judgment in carrying out the responsibilities of a director.
SECTION 2. Qualifications. Each director shall be a natural person, who is at least eighteen (18) years of age.
SECTION 3. Regular and Annual Meetings. An annual meeting of the Board for the election of officers shall be held, without notice other than these Bylaws, immediately after the annual meeting of the stockholders, and at the same place as, or, at such other time or place as the Board may fix by resolution. The Board may provide, by resolution, the time and place, within or without the State of Nevada, for the holding of regular meetings of the Board without notice other than such resolution.
SECTION 4. Special Meetings. Special meetings of the Board may be called for any purpose at any time by or at the request of the Chairman of the Board or the President. If the Chairman or the President is absent or disabled, any two or more directors may call a special meeting. The persons authorized to call special meetings of the Board shall give notice of such meetings in the manner prescribed by these Bylaws and may fix any place, within or without the Corporation's regular business area, as the place for holding any special meeting of the Board called by such persons. No business shall be conducted at a special meeting other than that specified in the notice of meeting.
SECTION 5. Notice of Meetings; Waiver of Notice. Except as otherwise
provided in Section 3 of this Article IV, at least twenty-four (24) hours notice
of meetings shall be given to each director if given in person or by telephone,
telegraph, telex, facsimile or other electronic transmission, and at least five
(5) days notice of meetings shall be given if provided in writing and delivered
by courier or by postage prepaid mail. Any notice shall state the date, place
and hour of the meeting and the purpose shall also be stated in the notice. Such
notice shall be deemed given when sent or given to any mail or courier service
or company providing electronic transmission service. Any director may waive
notice of any meeting by submitting a signed waiver of notice with the
Secretary, whether before or after the meeting. The attendance of a director at
a meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened.
SECTION 6. Conduct of Meetings. Meetings of the Board shall be presided over by the Chairman of the Board, the Vice Chairman of the Board or the President and, in the absence or incapacity of the Chairman of the Board, the Vice Chairman of the Board and the President, the presiding officer shall be the then senior member of the Board in terms of length of service on the Board. The Secretary or, in his absence, a person appointed by the President, Chairman of the Board or the Vice Chairman of the Board (or other presiding person), shall act as secretary of the meeting. The President, Chairman of the Board or the Vice Chairman of the Board (or other person presiding) shall conduct all meetings of the Board in accordance with the best interests of the Corporation and shall have the authority and discretion to establish reasonable procedural rules for the conduct of Board meetings. At the discretion of the President, the Chairman of the Board or the Vice Chairman of the Board, any one or more directors may participate in a meeting of the Board or a committee of the Board by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at any such meeting.
SECTION 7. Quorum and Voting Requirements. A quorum at any meeting of the Board shall consist of not less than a majority of the directors then in office or such greater number as shall be required by law, these Bylaws or the Amended and Restated Articles of Incorporation, but not less than one-third (1/3) of the total number. If less than a required quorum is present, the majority of those directors present shall adjourn the meeting to another time and place without further notice. At such adjourned meeting at which a quorum shall be represented, any business may be transacted that might have been transacted at the meeting as originally noticed. Except as otherwise provided by law, the Amended and Restated Articles of Incorporation or these Bylaws, a majority vote of the directors present at a meeting, if a quorum is present, shall constitute an act of the Board.
SECTION 8. Informal Action by Directors. Unless otherwise restricted by the Amended and Restated Articles of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board, or of any committee thereof, may be taken without a meeting if all members of the Board or such committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or such committee.
SECTION 9. Resignation. Any director may resign at any time by sending a written notice of such resignation to the principal office of the Corporation addressed to the President or Chairman of the Board. Unless otherwise specified therein, such resignation shall take effect upon receipt thereof.
SECTION 10. Vacancies. To the extent not inconsistent with the Amended and Restated Articles of Incorporation and subject to the limitations prescribed by law and the rights of holders of Preferred Stock, vacancies in the office of director, including vacancies created by newly created directorships resulting from an increase in the number of directors, shall be filled only by a vote of a majority of the directors then holding office, whether or not a quorum, at any regular or special meeting of the Board called for that purpose. Subject to the rights of holders of Preferred Stock, no person shall be so elected a director unless nominated by the Nominating and Corporate Governance Committee. Subject to the rights of holders of Preferred Stock, any director so elected shall serve for the remainder of the full term of the class of directors in which the new directorship was created or the vacancy occurred and until his or her successor shall be elected and qualified.
SECTION 11. Compensation. From time to time, as the Board deems necessary, the Board shall fix the compensation of directors, and officers of the Corporation in such one or more forms as the Board may determine.
SECTION 12. Amendments Concerning the Board. The number and other restrictions and qualifications for directors of the Corporation as set forth in these Bylaws may be altered only by a vote, in addition to any vote required by law, of two-thirds of the entire Board or by the affirmative vote of the holders of record of not less than eighty percent (80%) of the total votes eligible to be cast by holders of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors at a meeting of the stockholders called for that purpose.
ARTICLE V
COMMITTEES
SECTION 1. Standing Committees. At each annual meeting of the Board, the directors shall designate from their own number, by resolution, the following committees:
(a) Audit Committee;
(b) Nominating and Corporate Governance Committee; and
(c) Compensation Committee
which shall be standing committees of the Board. The Board shall appoint a director to fill any vacancy on any committee of the Board. The members of the committees shall serve at the pleasure of the Board.
SECTION 2. Audit Committee. The Audit Committee shall consist of at least three (3) members whose background and experience are financial and/or business management related, none of whom shall be an officer or salaried employee of the Corporation or its subsidiaries, an attorney who receives a fee or other compensation for legal services rendered to the Corporation or any other individual having a relationship which, in the opinion of the Board, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. At any regular meeting of the Board, any director who is otherwise eligible to serve on the Audit Committee may be elected to fill a vacancy that has occurred on the Audit Committee. The Board shall designate one member of the committee to serve as chairman of the committee. The Audit Committee shall meet annually, at the call of the chairman of the committee and may hold such additional meetings as the chairman of the committee may deem necessary, to examine, or cause to be examined, the records and affairs of the Corporation to determine its true financial condition, and shall present a report of examination to the Board at the Board's next regular meeting following the meeting of the Audit Committee. The committee shall appoint, from its membership or otherwise, a secretary who shall cause to be kept written minutes of all meetings of the committee. The Audit Committee shall make, or cause to be made, such other examinations as it may deem advisable or whenever so directed by the Board and shall report thereon in writing at a regular meeting of the Board. The Audit Committee shall make recommendations to the Board in relation to the employment of accountants and independent auditors and arrange for such other assistance as it may deem necessary or desirable. The Audit Committee shall review and evaluate the procedures and performance of the Corporation's internal auditing staff. A quorum shall consist of at least one-third of the members of the committee, and in no event less than two (2) members of the committee. The vote of a majority of the members present at any meeting at which a quorum exists including the presiding member, who shall be eligible to vote, shall constitute the action of the Audit Committee.
SECTION 3. Nominating and Corporate Governance Committee. The Board
of Directors shall appoint a Nominating and Corporate Governance Committee of
the Board, consisting of not less than three (3) members. Notwithstanding the
foregoing, no director shall serve on the Nominating and Corporate Governance
Committee in any capacity in any year during which such director's term as a
director is scheduled to expire. The Nominating Committee shall have authority
(a) to review any nominations for election to the Board of Directors made by a
stockholder of the Corporation pursuant to these Bylaws in order to determine
compliance with such Bylaw provision, and (b) to nominate persons for election
to the Board of Directors. A quorum shall consist of at least one-third of the
members of the committee, and in no event less than two (2) members of the
committee. The vote of a majority of the members present at any meeting at which
a quorum exists, including the presiding member, who shall be eligible to vote,
shall constitute the action of the Nominating and Corporate Governance
Committee.
SECTION 4. Compensation Committee. The Compensation Committee shall consist of at least three (3) members, none of whom shall be an officer or salaried employee of the Corporation or its subsidiaries, as shall be appointed by Board resolution or these Bylaws. The Board shall designate one member of the committee to serve as chairman of the committee, who shall have the authority to adopt and establish procedural rules for the conduct of all meetings of the committee.
The Compensation Committee shall meet annually at the call of the chairman of the committee, and may hold such additional meetings as the chairman may deem necessary. A quorum shall consist of at least one-third of the voting members of the Compensation Committee, and in no event less than two (2) voting members of the committee. The vote of a majority of the voting members present at any meeting at which a quorum exists, including the chairman of the committee who shall be eligible to vote, shall constitute the action of the Compensation Committee. The committee shall appoint, from its membership or otherwise, a secretary who shall cause to be kept written minutes of all meetings of the committee.
The Compensation Committee shall be responsible for recommending to the Board the compensation, employment arrangements and benefits programs for officers of the Corporation and its subsidiaries.
SECTION 5. Other Committees. The Board may by resolution authorize such other committees as from time to time it may deem necessary or appropriate for the conduct of the business of the Corporation. The members of each committee so authorized shall be appointed by the Chairman from members of the Board. Each such committee shall exercise such powers as may be assigned by the Board to the extent not inconsistent with law, these Bylaws, the Amended and Restated Articles of Incorporation or resolutions adopted by the Board.
ARTICLE VI
OFFICERS
SECTION 1. Generally. The Board of Directors as soon as may be practicable after the annual meeting of stockholders, shall choose a President and Chief Executive Officer, one or more Vice Presidents, a Secretary and Treasurer and from time to time may choose such other officers as it may deem proper. Any number of offices may be held by the same person.
(a) The term of office of all officers shall be until the next annual election of officers and until their respective successors are chosen, but any officer may be removed from office at any time by the President (without prejudice to any contract rights that the officer may have). The President may be removed from office at any time by the affirmative vote of a majority of the authorized number of directors then constituting the Board (without prejudice to any contract rights that the President may have).
(b) All officers chosen by the Board of Directors shall each have such powers and duties as generally pertain to their respective offices, subject to the specific provisions of this Article VI. Such officers shall also have such powers and duties as from time to time may be conferred by the Board or by any committee thereof.
SECTION 2. President and Chief Executive Officer. The President and Chief Executive Officer (the "President") shall have general responsibility for the management and control of the business and affairs of the Corporation and shall perform all duties and have all powers which are commonly incident to the offices of President and Chief Executive Officer or which are delegated to him or her by the Board. Subject to the direction of the Board, the President shall have power to sign all stock certificates, contracts and other instruments of the Corporation which are authorized and shall have general supervision of all of the other Officers, employees and agents of the Corporation.
SECTION 3. Vice President. The Vice President or Vice Presidents shall perform the duties of the President in his or her absence or during his disability to act. In addition, the Vice Presidents shall perform the duties and exercise the powers usually incident to their respective offices and/or such other duties and powers as may be properly assigned to them by the Board, the Chairman of the Board or the President. A Vice President or Vice Presidents may be designated as Executive Vice President or Senior Vice President.
SECTION 4. Secretary. The Secretary or an Assistant Secretary shall issue notices of meetings, shall keep their minutes, shall have charge of the seal and the corporate books, shall perform such other duties and exercise such other powers as are usually incident to such offices and/or such other duties and powers as are properly assigned thereto by the Board, the Chairman of the Board or the President.
SECTION 5. Compensation of Officers and Others. The compensation of the President and Chief Executive Officer shall be fixed from time to time by the Board, or by any committee or officer authorized by the Board to do so.
ARTICLE VII
DIVIDENDS
Subject to applicable law, dividends may be declared and paid out of any funds available therefore, as often, in such amounts, and at such time or times as the Board may determine.
ARTICLE VIII
NOTICES
SECTION 1. Notices. Except as otherwise specifically provided herein or required by law, all notices required to be given to any stockholder, director, officer, employee or agent shall be in writing and may in every instance be effectively given by hand delivery to the recipient thereof, by depositing such notice in the U.S. mails, postage prepaid, or by sending such notice by facsimile transmission or by courier. Any such notice shall be addressed to such stockholder, director, officer, employee or agent at his or her last known address as the same appears on the books of the Corporation. The time when such notice is received, if hand delivered, or dispatched, if delivered through the mails or by facsimile transmission or other courier, shall be the time of the giving of the notice.
SECTION 2. Waivers. A written waiver of any notice, signed by a stockholder, director, officer, employee or agent, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to such stockholder, director, officer, employee or agent. Neither the business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE IX
MISCELLANEOUS
SECTION 1. Facsimile Signatures. In addition to the provisions for use of facsimile signatures elsewhere specifically authorized in these Bylaws, facsimile signatures of any officer or officers of the Corporation may be used whenever and as authorized by the Board or a committee thereof.
SECTION 2. Corporate Seal. The Board of Directors may provide a suitable seal, containing the name of the Corporation, which seal shall be in the charge of the Secretary. If and when so directed by the Board or a committee thereof, duplicates of the seal may be kept and used by the Chief Financial Officer or by an Assistant Secretary or an assistant to the Chief Financial Officer.
SECTION 3. Reliance Upon Books, Reports and Records. Each director, each member of any committee designated by the Board, and each officer of the Corporation shall, in the performance of his or her duties, be fully protected in relying in good faith upon the books of account or other records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers or employees, or committees of the Board so designated, or by any other person as to matters which such director or committee member reasonably believes are within such other person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.
SECTION 4. Fiscal Year. The fiscal year of the Corporation shall be as fixed by the Board.
SECTION 5. Time Periods. In applying any provision of these Bylaws which requires that an act be done or not be done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.
ARTICLE X
AMENDMENTS
Except as provided by applicable law, the Amended and Restated Articles of Incorporation or these Bylaws, new Bylaws may be adopted or these Bylaws may be amended or repealed by either the affirmative vote of eighty percent (80%) of the total number of votes eligible to be cast by the holders of all the outstanding shares of voting stock or by the affirmative vote of a majority of the Board, at any regular meeting or special meeting of the stockholders or of the Board.