Exhibit
3(ii)
Amended
and Restated Bylaws of
SmartHeat
Inc.,
a
Nevada
Corporation
ARTICLE
I
STOCKHOLDERS
1.01
Annual Meeting. An annual meeting of the stockholders of the corporation shall
be held at 2:00 p.m., local time, on the third Thursday of May, in each year,
commencing after the first anniversary of incorporation, but if such date is
a
Saturday, Sunday or legal holiday, then on the next succeeding business day,
for
the purpose of electing directors of the corporation to serve during the ensuing
year and for the transaction of such other business as may properly come before
the meeting. If the election of the directors is not held on the day designated
herein for any annual meeting of the stockholders, or at any adjournment
thereof, the president shall cause the election to be held at a special meeting
of the stockholders as soon thereafter as is convenient.
1.02
Special Meetings.
(a)
Special meetings of the stockholders may be called by the chairman of the board,
if any, or the president and shall be called by the chairman, if any, the
president or the Board of Directors at the written request of the holders of
not
less than a majority of the voting power of any class of the corporation's
stock
entitled to vote.
(b)
No
business shall be acted upon at a special meeting except as set forth in the
notice calling the meeting, unless one of the conditions for the holding of
a
meeting without notice set forth in Section 1.05 shall be satisfied, in which
case any business may be transacted and the meeting shall be valid for all
purposes.
1.03
Place of Meetings. Any meeting of the stockholders of the corporation may be
held at its registered office in the State of Nevada or at such other place
in
or out of the State of Nevada and the United States as the Board of Directors
may designate. A waiver of notice signed by stockholders entitled to vote may
designate any place for the holding of such meeting.
1.04
Notice of Meetings; Waiver of Notice.
(a)
The
president, a vice president, the secretary, an assistant secretary or any other
individual designated by the Board of Directors shall sign and deliver, or
cause
to be delivered, written notice to the stockholders of any stockholders' meeting
at least ten (10) days, but not more than sixty (60) days, before the date
of
such meeting. The notice shall state the place, date and time of the meeting
and
the purpose or purposes for which the meeting is called.
(b)
In
the case of an annual meeting, any proper business may be presented for action,
except that action on any of the following items shall be taken only if the
general nature of the proposal is stated in the notice:
(i)
Action with respect to any contract or transaction between the corporation
and
one or more of its directors or officers or between the corporation and any
corporation, firm or association in which one or more of the corporation's
directors or officers is a director or officer or is financially
interested;
(ii)
Adoption of amendments to the Articles of Incorporation; or
(iii)
Action with respect to a merger, share exchange, reorganization, partial or
complete liquidation, or dissolution of the corporation.
(c)
A
copy of the notice shall be personally delivered or mailed postage prepaid
to
each stockholder of record entitled to vote at the meeting at the address
appearing on the records of the corporation, and the notice shall be deemed
delivered the date the same is deposited in the United States mail for
transmission to such stockholder. If the address of any stockholder does not
appear upon the records of the corporation, it will be sufficient to address
any
notice to such stockholder at the registered office of the
corporation.
(d)
The
written certificate of the individual signing a notice of meeting, setting
forth
the substance of the notice or having a copy thereof attached, the date the
notice was mailed or personally delivered to the stockholders and the addresses
to which the notice was mailed, shall be prima facie evidence of the manner
and
fact of giving such notice.
(e)
Any
stockholder may waive notice of any meeting by a signed writing, either before
or after the meeting. Such waiver of notice shall be deemed the equivalent
of
the giving of such notice. Attendance of a person at a meeting shall also
constitute waiver of notice of such meeting, except when the person objects
at
the beginning of the meeting to the transaction of any business because the
meeting is not lawfully called or convened and except that attendance at a
meeting is not a waiver of any right to object to the consideration of matters
not properly included in the notice itself if such objection is expressly made
at the time such matters are presented at the meeting. Neither the business
to
be transacted at nor the purpose of any regular or special meeting needs to
be
specified in any written waiver or notice or consent except as may be provided
otherwise by these Bylaws.
1.05
Meeting Without Notice.
(a)
Whenever all persons entitled to vote at any meeting consent, either by: (i)
a
writing on the records of the meeting or filed with the secretary, (ii) presence
at such meeting and oral consent entered on the minutes, or (iii) taking part
in
the deliberations at such meeting without objection, such meeting shall be
as
valid as if a meeting regularly called and noticed.
(b)
At
such meeting any business may be transacted which is not excepted from the
written consent or to the consideration of which no objection for want of notice
is made at the time.
(c)
If
any meeting be irregular for want of notice or of such consent, provided a
quorum was present at such meeting, the proceedings of the meeting may be
ratified and approved and rendered likewise valid and the irregularity or defect
therein waived by a writing signed by all parties having the right to vote
at
such meeting.
(d)
Such
consent or approval may be by proxy or power of attorney, but all such proxies
and powers of attorney must be in writing.
1.06
Determination of Stockholders of Record.
(a)
For
the purpose of determining the stockholders entitled to notice of and to vote
at
any meeting of stockholders or any adjournment thereof, or to express consent
to
corporate action in writing without a meeting, or entitled to receive payment
of
any distribution or the allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion, or exchange of stock or for the
purpose of any other lawful action, the directors may fix, in advance, a record
date, which shall not be more than sixty (60) days nor less than ten (10) days
before the date of such meeting, nor more than sixty (60) days prior to any
other action.
(b)
If no
record date is fixed, the record date for determining stockholders: (i) entitled
to notice of and to vote at a meeting of stockholders shall be at the close
of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day
on
which the meeting is held; (ii) entitled to express consent to corporate action
in writing without a meeting shall be the day on which the first written consent
is expressed; and (iii) for any other purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto. A determination of stockholders of record entitled to notice of or
to
vote at any meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
1.07
Quorum; Adjourned Meetings.
(a)
Unless the Articles of Incorporation provide for a different proportion,
stockholders holding at least a majority of the voting power of the
corporation's capital stock, represented in person or by proxy, are necessary
to
constitute a quorum for the transaction of business at any meeting. If, on
any
issue, voting by classes is required by the laws of the State of Nevada, the
Articles of Incorporation or these Bylaws, at least a majority of the voting
power within each such class is necessary to constitute a quorum of each such
class.
(b)
If a
quorum is not represented, a majority of the voting power so represented may
adjourn the meeting from time to time until a quorum shall be represented.
At
any such adjourned meeting at which a quorum shall be represented, any business
may be transacted which might have been transacted as originally called. When
a
stockholders' meeting is adjourned to another time or place hereunder, notice
need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. The stockholders
present at a duly convened meeting at which a quorum is present may continue
to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum of the voting power.
1.08
Voting; Manner of Acting.
(a)
Unless otherwise provided in the Articles of Incorporation, or in the resolution
providing for the issuance of the preferred stock adopted by the Board of
Directors pursuant to authority expressly vested in it by the provisions of
the
Articles of Incorporation, each stockholder of record, or such stockholder's
duly authorized proxy or attorney-in-fact, shall be entitled to one (1) vote
for
each share of voting stock standing registered in such stockholder's name on
the
record date.
(b)
Except as otherwise provided herein, all votes with respect to shares standing
in the name of an individual on the record date (including pledged shares)
shall
be cast only by that individual or such individual's duly authorized proxy,
attorney-in-fact, or voting trustee(s) pursuant to a voting trust. With respect
to shares held by a representative of the estate of a deceased stockholder,
guardian, conservator, custodian or trustee, votes may be cast by such holder
upon proof of such representative capacity, even though the shares do not stand
in the name of such holder. In the case of shares under the control of a
receiver, the receiver may cast votes carried by such shares even though the
shares do not stand in the name of the receiver; provided, that the order of
a
court of competent jurisdiction which appoints the receiver contains the
authority to cast votes carried by such shares. If shares stand in the name
of a
minor, votes may be cast only by the duly appointed guardian of the estate
of
such minor if such guardian has provided the corporation with written proof
of
such appointment.
(c)
With
respect to shares standing in the name of another corporation, partnership,
limited liability company or other legal entity on the record date, votes may
be
cast: (i) in the case of a corporation, by such individual as the bylaws of
such
other corporation prescribe, by such individual as may be appointed by
resolution of the board of directors of such other corporation or by such
individual (including the officer making the authorization) authorized in
writing to do so by the chairman of the board, if any, president or any vice
president of such corporation and (ii) in the case of a partnership, limited
liability company or other legal entity, by an individual representing such
stockholder upon presentation to the corporation of satisfactory evidence of
his
or her authority to do so.
(d)
Notwithstanding anything to the contrary herein contained, the Corporation
shall
not vote, directly or indirectly, shares of its own stock owned by it; and
such
shares shall not be counted in determining the total number of outstanding
shares. If shares in the Corporation are held by the Corporation in a fiduciary
capacity, no votes shall be cast with respect thereto on any matter except
to
the extent that the beneficial owner thereof possesses and exercises a right
to
vote and gives the Corporation binding instructions on how to vote.
(e)
Any
holder of shares entitled to vote on any matter may cast a portion of the votes
in favor of such matter and refrain from casting the remaining votes or cast
the
same against the proposal, except in the case of elections of directors. If
such
holder entitled to vote votes any of its shares affirmatively and fails to
specify the number of affirmative votes, it will be conclusively presumed that
the holder is casting affirmative votes with respect to all shares
held.
(f)
With
respect to shares standing in the name of two or more persons, whether
fiduciaries, members of a partnership, joint tenants, tenants in common, husband
and wife as community property, tenants by the entirety, voting trustees,
persons entitled to vote under a stockholder voting agreement or otherwise
and
shares held by two or more persons (including proxy holders) having the same
fiduciary relationship in respect to the same shares, votes may be cast in
the
following manner:
(i)
If
only one person votes, the vote of such person binds all.
(ii)
If
more than one person casts votes, the act of the majority so voting binds
all.
(iii)
If
more than one person casts votes, but the vote is evenly split on a particular
matter, the votes shall be deemed cast proportionately, as split.
(g)
If a
quorum is present, unless the Articles of Incorporation provide for a different
proportion, action by the stockholders entitled to vote on a matter other than
the election of directors, is approved by and is the act of the stockholders, if
the number of votes cast in favor of the action exceeds the number of votes
cast
in opposition to the action, unless voting by classes is required for any action
of the stockholders by the laws of the State of Nevada, the Articles of
Incorporation or these Bylaws, in which case the number of votes cast in favor
of the action by the voting power of each such class must exceed the number
of
votes cast in opposition to the action by the voting power of each such
class.
(h)
If a
quorum is present, unless elected by written consent pursuant to these Bylaws
and Section 78.320 of the Nevada Revised Statutes, directors shall be elected
by
a plurality of the votes cast.
1.09
Proxies. At any meeting of stockholders, any holder of shares entitled to vote
may designate, in a manner permitted by the laws of the State of Nevada, another
person or persons to act as a proxy or proxies. Every proxy shall continue
in
full force and effect until its expiration or revocation in a manner permitted
by the laws of the State of Nevada.
1.10
Telephonic Meetings. Stockholders may participate in a meeting of the
stockholders by means of a telephone conference or similar method of
communication by which all individuals participating in the meeting can hear
each other. Participation in a meeting pursuant to this Section 1.10 constitutes
presence in person at the meeting.
1.11
Action Without Meeting. Any action required or permitted to be taken at a
meeting of the stockholders may be taken without a meeting if a written consent
thereto is signed by the holders of the voting power of the corporation that
would be required at a meeting to constitute the act of the stockholders.
Whenever action is taken by written consent, a meeting of stockholders need
not
be called or notice given. The written consent may be signed in counterparts,
including, without limitation, facsimile counterparts, and shall be filed with
the minutes of the proceedings of the stockholders.
1.12
Organization; Order of Business. Meetings of stockholders shall be presided
over
by the chairman of the board, or in the absence of the chairman by the
president, or in the absence of the foregoing persons by a chairman designated
by the Board of Directors, or in the absence of such designation by the Board
of
Directors by a chairman chosen at the meeting by the stockholders entitled
to
cast a majority of the votes which all stockholders present in person or by
proxy are entitled to cast. The secretary, or in the absence of the secretary
an
assistant secretary, shall act as secretary of the meeting, but in the absence
of the secretary and any assistant secretary the chairman of the meeting may
appoint any person to act as secretary of the meeting. The order of business
at
each such meeting shall be as determined by the chairman of the meeting. The
chairman of the meeting shall have the right and authority to prescribe such
rules, regulations and procedures and to do all such acts and things as are
necessary or desirable for the proper conduct of the meeting, including, without
limitation, the establishment of procedures for the maintenance of order and
safety, limitation on the time allotted to questions or comments on the affairs
of the corporation, restrictions on entry to such meeting after the time
prescribed for the commencement thereof and the opening and closing of the
voting polls.
ARTICLE
II
DIRECTORS
2.01
Number, Tenure, and Qualifications. Unless a larger number is required by the
laws of the State of Nevada or the Articles of Incorporation or until changed
in
the manner provided herein, the Board of Directors of the corporation shall
consist of at least one (1) individual and not more than ten (10) individuals.
Except as provided in Section 2.06 below, the directors shall be elected at
the
annual meeting of the stockholders of the corporation and shall hold office
until their successors are elected and qualify or until their earlier
resignation or removal. A director need not be a stockholder of the
corporation.
2.02
Change In Number. Subject to any limitations in the laws of the State of Nevada,
the Articles of Incorporation or these Bylaws, the number of directors within
the fixed minimum and maximum set forth in Section 2.01 may be changed from
time
to time by resolution adopted by the Board of Directors or the stockholders
without amendment to these Bylaws or the Articles of Incorporation.
2.03
Reduction In Number. No reduction of the number of directors shall have the
effect of removing any director prior to the expiration of his or her term
of
office.
2.04
Resignation. Any director may resign effective upon giving written notice to
the
chairman of the board, if any, the president or the secretary, or in the absence
of all of them, any other officer, unless the notice specifies a later time
for
effectiveness of such resignation. A majority of the remaining directors, though
less than a quorum, may appoint a successor to take office when the resignation
becomes effective, each director so appointed to hold office during the
remainder of the term of office of the resigning director.
2.05
Removal.
(a)
The
Board of Directors of the corporation, by majority vote, may declare vacant
the
office of a director who has been declared incompetent by an order of a court
of
competent jurisdiction or convicted of a felony.
(b)
Any
director may be removed from office by the vote or written consent of
stockholders representing not less than two-thirds of the voting power of the
issued and outstanding stock entitled to vote.
2.06
Vacancies.
(a)
All
vacancies, including those caused by an increase in the number of directors,
may
be filled by a majority of the remaining directors, though less than a quorum,
or by the stockholders entitled to vote at any annual meeting or special meeting
held in accordance with Article I, unless it is otherwise provided in the
Articles of Incorporation unless, in the case of removal of a director, the
stockholders by a majority of voting power shall have appointed a successor
to
the removed director. Subject to the provisions of Subsection (b) below, (i)
in
the case of the replacement of a director, the appointed director shall hold
office during the remainder of the term of office of the replaced director,
and
(ii) in the case of an increase in the number of directors, the appointed
director shall hold office until the next meeting of stockholders at which
directors are elected.
(b)
If,
after the filling of any vacancy by the directors, the directors then in office
who have been elected by the stockholders shall constitute less than a majority
of the directors then in office, any holder or holders of an aggregate of five
percent (5%) or more of the total voting power entitled to vote may call a
special meeting of the stockholders to elect the entire Board of Directors.
The
term of office of any director shall terminate upon such election of a
successor.
2.07
Annual and Regular Meetings. Immediately following the adjournment of, and
at
the same place as, the annual or any special meeting of the stockholders at
which directors are elected other than pursuant to Section 2.06 of this Article,
the Board of Directors, including directors newly elected, shall hold its annual
meeting without call or notice, other than this provision, to elect officers
and
to transact such further business as may be necessary or appropriate. The Board
of Directors may provide by resolution the place, date, and hour for holding
regular meetings between annual meetings.
2.08
Special Meetings. Special meetings of the Board of Directors may be called
by
the chairman of the board or by the president or secretary, and shall be called
by the chairman of the board, if any, the president or the secretary upon the
request of any three (3) directors. If the chairman of the board or, if there
be
no chairman, both the president and secretary, refuse or neglect to call such
special meeting, a special meeting may be called by notice signed by any two
(2)
directors.
2.09
Place of Meetings. Any regular or special meeting of the directors of the
corporation may be held at such place as the Board of Directors, or in the
absence of such designation, as the notice calling such meeting, may designate.
A waiver of notice signed by the directors may designate any place for the
holding of such meeting.
2.10
Notice of Meetings. Except as otherwise provided in Section 2.07, there shall
be
delivered to all directors, at least twenty-four (24) hours before the time
of
such meeting, a copy of a written notice of any meeting (i) by delivery of
such
notice personally; (ii) by mailing such notice postage prepaid; (iii) by
facsimile; (iv) by electronic mail; (v) by overnight courier; or (vi) by
telegram. Such notice shall be addressed in the manner provided for notice
to
stockholders in Section 1.04(c). If mailed inside the United States, the notice
shall be deemed delivered two (2) business days following the date the same
is
deposited in the United States mail, postage prepaid. If mailed outside the
United States, the notice shall be deemed delivered four (4) business days
following the date the same is deposited in the United States mail, postage
prepaid. If sent via facsimile, the notice shall be deemed delivered upon
sender's receipt of confirmation of the successful transmission. If the address
of any director does not appear upon the records of the Corporation it will
be
sufficient to address any notice to such director at the registered office
of
the Corporation. Any director may waive notice of any meeting, and the
attendance of a director at a meeting and oral consent entered on the minutes
of
such meeting shall constitute waiver of notice of the meeting unless such
director objects, prior to the transaction of any business, that the meeting
was
not lawfully called, noticed or convened. Attendance for the express purpose
of
objecting to the transaction of business thereat because the meeting was not
properly called or convened shall not constitute presence or a waiver of notice
for purposes hereof.
2.11
Quorum; Adjourned Meetings.
(a)
A
majority of the directors in office, at a meeting duly assembled, is necessary
to constitute a quorum for the transaction of business.
(b)
At
any meeting of the Board of Directors where a quorum is not present, a majority
of those present may adjourn, from time to time, until a quorum is present,
and
no notice of such adjournment shall be required. At any adjourned meeting where
a quorum is present, any business may be transacted which could have been
transacted at the meeting originally called.
2.12
Manner of Acting. The affirmative vote of a majority of the directors present
at
a meeting at which a quorum is present is the act of the Board of
Directors.
2.13
Telephonic Meetings. Members of the Board of Directors or of any committee
designated by the Board of Directors may participate in a meeting of the Board
of Directors or such committee by means of a telephone conference or similar
method of communication by which all persons participating in such meeting
can
hear each other. Participation in a meeting pursuant to this Section 2.13
constitutes presence in person at the meeting.
2.14
Action Without Meeting. Any action required or permitted to be taken at a
meeting of the Board of Directors or of a committee thereof may be taken without
a meeting if, before or after the action, a written consent thereto is signed
by
all of the members of the Board of Directors or the committee. The written
consent may be signed in counterparts, including, without limitation, facsimile
counterparts, and shall be filed with the minutes of the proceedings of the
Board of Directors or committee.
2.15
Powers and Duties.
(a)
Except as otherwise restricted in the laws of the State of Nevada or the
Articles of Incorporation, the Board of Directors has full control over the
business and affairs of the corporation. The Board of Directors may delegate
any
of its authority to manage, control or conduct the business of the corporation
to the President, including the power to subdelegate, and in the absence or
disqualification of the President, to any standing or special committee or
to
any officer or agent and to appoint any persons to be agents of the corporation
with such powers, including the power to subdelegate, and upon such terms as
may
be deemed fit.
(b)
The
Board of Directors may present to the stockholders at annual meetings of the
stockholders, and, when called for by a majority vote of the stockholders at
an
annual meeting or a special meeting of the stockholders, shall so present,
a
full and clear report of the condition of the corporation.
(c)
The
Board of Directors, in its discretion, or the officer of the Corporation
presiding at a meeting of stockholders, in his discretion, may (i) require
that
any votes cast at such meeting shall be cast by written ballot, and/or (ii)
submit any contract or act for approval or ratification at any annual meeting
of
the stockholders or any special meeting properly called and noticed for the
purpose of considering any such contract or act, provided a quorum is
present.
(d)
The
Board of Directors may, by resolution passed by a majority of the board,
designate one or more committees, each committee to consist of one or more
of
the directors of the Corporation. The Board of Directors may designate one
or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he,
she
or they constitute a quorum, may unanimously appoint another member of the
Board
of Directors to act at the meeting in the place of any such absent or
disqualified member. Subject to applicable law and to the extent provided in
the
resolution of the Board of Directors, any such committee shall have and may
exercise all the powers of the Board of Directors in the management of the
business and affairs of the Corporation. Such committee or committees shall
have
such name or names as may be determined from time to time by resolution adopted
by the Board of Directors. The committees shall keep regular minutes of their
proceedings and report the same to the Board of Directors when
required.
2.16
Compensation. The directors and members of committees shall be allowed and
paid
all necessary expenses incurred in attending any meetings of the Board of
Directors or committee and may be paid a fixed fee for attendance at any meeting
of the Board of Directors or committee. Subject to any limitations contained
in
the laws of the State of Nevada, the Articles of Incorporation or any contract
or agreement to which the corporation is a party, directors may receive
compensation for their services as directors as determined by the Board of
Directors, which may include options and restricted stock grants.
2.17
Organization; Order of Business. Meetings of the Board of Directors shall be
presided over by the chairman of the board, or in the absence of the chairman
of
the board by the president, or in his or her absence by a chairman chosen at
the
meeting. The secretary, or in the absence of the secretary an assistant
secretary, shall act as secretary of the meeting, but in the absence of the
secretary and any assistant secretary the chairman of the meeting may appoint
any person to act as secretary of the meeting. The order of business at each
such meeting shall be as determined by the chairman of the meeting.
ARTICLE
III
OFFICERS
3.01
Election. The Board of Directors shall appoint a president, a secretary and
a
treasurer to hold office until their successors are duly appointed and
qualified, and shall fix their compensation. The Board of Directors may, by
resolution, appoint a chairman of the board. Any individual may hold two or
more
offices.
3.02
Removal; Resignation. Any officer elected or appointed by the Board of Directors
may be removed by it with or without cause. Any officer may resign at any time
upon written notice to the corporation. Any such removal or resignation shall
be
subject to the rights, if any, of the respective parties under any contract
between the corporation and such officer or agent.
3.03
Vacancies. Any vacancy in any office because of death, resignation, removal
or
otherwise may be filled by the Board of Directors for the unexpired portion
of
the term of such office.
3.04
President; Chief Executive Officer. The president shall hold the title of Chief
Executive Officer and have active executive management of the operations of
the
corporation, subject to the supervision and control of the Board of Directors.
The president shall direct the corporate affairs of the corporation, with full
power and authority on behalf of the corporation to execute proxies and to
execute powers of attorney appointing other entities the agent of the
corporation. He shall have the right to attend all meetings of the stockholders,
Board of Directors, and committees. Aside from the officers who are appointed
directly by the board, the President shall appoint and dismiss all other
officers, employees, agents, independent contractors, and have concurrent power
with the board to appoint and dismiss professional service providers, including
law, accounting, financial advisory and property assessment firms for the
corporation.
3.05
Vice
Presidents. In the absence or disqualification of the President, the Board
of
Directors may elect one or more vice presidents who shall be vested with all
the
powers and perform all the duties of the president whenever the president is
absent, disabled or otherwise unable to act and such other duties as shall
be
provided in these Bylaws or prescribed by the Board of Directors or the
president.
3.06
Secretary. The secretary shall perform all duties incident to the office of
secretary, including attending meetings of the stockholders and Board of
Directors and keeping, or causing to be kept, the minutes of proceedings thereof
in books provided for that purpose. The secretary shall attend to the giving
and
service of all notices of the corporation, shall have the custody or designate
control of the corporate seal, shall affix the corporate seal to all
certificates of stock duly issued by the corporation, shall have charge or
designate control of stock certificate books, transfer books and stock ledgers
and such other books and papers as the Board of Directors or appropriate
committee may direct, and shall perform such other duties as these Bylaws may
provide or the Board of Directors may prescribe.
3.07
Assistant Secretaries. The Board of Directors may appoint one or more assistant
secretaries who shall have such powers and perform such duties as may be
provided in these Bylaws or prescribed by the Board of Directors or the
secretary.
3.08
Treasurer. The treasurer shall keep correct and complete records of account,
showing accurately at all times the financial condition of the corporation
and
accounts of all monies received and paid on account of the corporation, and
shall perform all acts incident to the position of treasurer, subject to the
control of the Board of Directors. Whenever required by the Board of Directors,
the treasurer shall render a statement of any or all accounts. The treasurer
shall have custody of all the funds and securities of the corporation. When
necessary or proper, the treasurer shall endorse on behalf of the corporation
for collection checks, notes, and other obligations, and shall deposit all
monies to the credit of the corporation in such bank or banks or other
depository as the Board of Directors may designate, and shall sign all receipts
and vouchers for payments made by the corporation. The treasurer shall have
care
and custody of the stocks, bonds, certificates, vouchers, evidence of debts,
securities, and such other property belonging to the corporation. The treasurer
shall, if required by the Board of Directors, give bond to the corporation
in
such sum and with such security as shall be approved by the Board of Directors
for the faithful performance of all the duties of treasurer and for restoration
to the corporation, in the event of the treasurer's death, resignation,
retirement or removal from office, of all books, records, papers, vouchers,
money and other property in the treasurer's custody or control and belonging
to
the corporation. The expense of such bond shall be borne by the corporation.
If
a chief financial officer of the corporation has not been appointed, the
treasurer may be deemed the chief financial officer of the
corporation.
3.09
Assistant Treasurers. The Board of Directors may appoint one or more assistant
treasurers who shall have such powers and perform such duties as may be
prescribed by the Board of Directors or the treasurer. The Board of Directors
may require an assistant treasurer to give a bond to the corporation in such
sum
and with such security as it may approve, for the faithful performance of the
duties of assistant treasurer, and for restoration to the corporation, in the
event of the assistant treasurer's death, resignation, retirement or removal
from office, of all books, records, papers, vouchers, money and other property
in the assistant treasurer's custody or control and belonging to the
corporation. The expense of such bond shall be borne by the
corporation.
3.10
Chairman of the Board. The chairman of the board may be chosen by and from
the
members of the Board of Directors and shall preside at the meetings of the
Board
of Directors and stockholders. If no chairman of the board is appointed or
if
the chairman is absent from a Board meeting, then the Board of Directors may
appoint a chairman from the members of the Board for the sole purpose of
presiding at any such meeting. If no chairman of the board is appointed or
if
the chairman is absent from any stockholder meeting, then the president shall
preside at such stockholder meeting. If the president is absent from any
stockholder meeting, then the stockholders may appoint a substitute chairman
solely for the purpose of presiding over such stockholder meeting.
3.11
Execution of Negotiable Instruments, Deeds and Contracts. Unless otherwise
required by law or otherwise authorized or directed by these Bylaws or by the
Board of Directors, the President or his designee may sign all checks, drafts,
notes, bonds, bills of exchange, and orders for the payment of money of the
corporation; all deeds, mortgages and other written contracts, documents,
instruments and agreements to which the corporation shall be a party; and all
assignments or endorsements of stock certificates, registered bonds or other
securities owned by the corporation, and to execute all resolutions and orders
of the Board of Directors, and to attend, act and vote, or designate another
officer or an agent of the corporation to attend, act and vote, at any meetings
of the owners of any entity in which the corporation may own an interest or
to
take action by written consent in lieu thereof.
ARTICLE
IV
CAPITAL
STOCK
4.01
Issuance. Shares of the corporation's authorized stock shall, subject to any
provisions or limitations of the laws of the State of Nevada, the Articles
of
Incorporation or any contracts or agreements to which the corporation may be
a
party, be issued in such manner, at such times, upon such conditions and for
such consideration as shall be prescribed by the Board of
Directors.
4.02
Certificates. Ownership in the corporation shall be evidenced by shares that
may
be certificated or uncertificated. Each shareholder, upon written request to
the
transfer agent or registrar, shall be entitled to a certificate(s) for shares
of
stock in such form as shall be prescribed by the Board of Directors, may be
under the seal of the corporation and shall be manually signed by the president
or a vice president and/or the secretary or an assistant secretary, and/or
by
any other officers or agents designated by the Board of Directors for this
purpose; provided, however, whenever any certificate is countersigned or
otherwise authenticated by a transfer agent or transfer clerk, and by a
registrar, then a facsimile of the signatures of said officers or agents of
the
corporation may be printed or lithographed upon the certificate in lieu of
the
actual signatures. If the corporation uses facsimile signatures of its officers
and agents on its stock certificates, it shall not act as registrar of its
own
stock, but its transfer agent and registrar may be identical if the institution
acting in those dual capacities countersigns any stock certificates in both
capacities. Each certificate shall contain the name of the record holder, the
number, designation, if any, class or series of shares represented, a statement,
summary of or reference to any applicable rights, preferences, privileges or
restrictions thereon, and a statement, if applicable, that the shares are
assessable. All certificates shall be consecutively numbered. If provided by
the
stockholder, the name, address and federal tax identification number of the
stockholder, the number of shares, and the date of issue shall be entered in
the
stock transfer records of the corporation.
4.03
Surrendered; Lost or Destroyed Certificates. All certificates surrendered to
the
corporation, except those representing shares of treasury stock, shall be
canceled and no new certificate shall be issued until the former certificate
for
a like number of shares shall have been canceled, except that in case of a
lost,
stolen, destroyed or mutilated certificate, a new one may be issued therefor.
However, any stockholder applying for the issuance of a stock certificate in
lieu of one alleged to have been lost, stolen, destroyed or mutilated shall,
prior to the issuance of a replacement, provide the corporation with his, her
or
its affidavit of the facts surrounding the loss, theft, destruction or
mutilation and, if required by the Board of Directors, an indemnity bond in
an
amount not less than twice the current market value of the stock, and upon
such
terms as the treasurer or the Board of Directors shall require which shall
indemnify the corporation against any loss, damage, cost or inconvenience
arising as a consequence of the issuance of a replacement
certificate.
4.04
Replacement Certificate. When the Articles of Incorporation are amended in
any
way affecting the statements contained in the certificates for outstanding
shares of capital stock of the corporation or it becomes desirable for any
reason, in the discretion of the Board of Directors, including, without
limitation, the merger of the corporation with another corporation or the
reorganization of the corporation, to cancel any outstanding certificate for
shares and issue a new certificate therefor conforming to the rights of the
holder, the Board of Directors may order any holders of outstanding certificates
for shares to surrender and exchange the same for new certificates within a
reasonable time to be fixed by the Board of Directors. The order may provide
that a holder of any certificate(s) ordered to be surrendered shall not be
entitled to vote, receive distributions or exercise any other rights of
stockholders of record until the holder has complied with the order, but the
order operates to suspend such rights only after notice and until
compliance.
4.05
Transfer of Shares. No transfer of stock shall be valid as against the
corporation, if such shares are certificated, except on surrender and
cancellation of the certificates therefor accompanied by an assignment or
transfer by the registered owner made either in person or under assignment.
Whenever any transfer shall be expressly made for collateral security and not
absolutely, the collateral nature of the transfer shall be reflected in the
entry of transfer in the records of the corporation.
4.06
Transfer Agent; Registrars. The President or his designee may appoint one or
more transfer agents, transfer clerk and registrars of transfer and may require
all certificates for shares of stock to bear the signature of such transfer
agent, transfer clerk and/or registrar of transfer.
4.07
Stock Transfer Records. The stock transfer records shall be closed for a period
of at least ten (10) days prior to all meetings of the stockholders and shall
be
closed for the payment of distributions as provided in Article V hereof and
during such periods as, from time to time, may be fixed by the Board of
Directors, and, during such periods, no stock shall be transferable for purposes
of Article V and no voting rights shall be deemed transferred during such
periods. Subject to the foregoing limitations, nothing contained herein shall
cause transfers during such periods to be void or voidable.
4.08
Miscellaneous. The President shall have the power and authority to make such
rules and regulations not inconsistent herewith as it may deem expedient
concerning the issue, transfer, and registration of certificates for shares
of
the corporation's stock.
ARTICLE
V
DISTRIBUTIONS
5.01
Distributions. Distributions may be declared, subject to the provisions of
the
laws of the State of Nevada and the Articles of Incorporation, by the Board
of
Directors and may be paid in cash, property, shares of corporate stock, or
any
other medium. The Board of Directors may fix in advance a record date, as
provided in Section 1.06, prior to the distribution for the purpose of
determining stockholders entitled to receive any distribution. The Board of
Directors may close the stock transfer books for such purpose for a period
of
not more than ten (10) days prior to the date of such distribution.
ARTICLE
VI
RECORDS;
REPORTS; SEAL; AND FINANCIAL MATTERS
6.01
Records. All original records of the corporation shall be kept by or under
the
direction of the secretary or at such places as may be prescribed by the Board
of Directors.
6.02
Directors' and Officers' Right of Inspection. Every director and officer shall
have the absolute right at any reasonable time for a purpose reasonably related
to the exercise of such individual's duties to inspect and copy all of the
corporation's books, records, and documents of every kind and to inspect the
physical properties of the corporation and/or its subsidiary corporations.
Such
inspection may be made in person or by agent or attorney.
6.03
Corporate Seal. The Board of Directors may, by resolution, authorize a seal,
and
the seal may be used by causing it, or a facsimile, to be impressed or affixed
or reproduced or otherwise. Except when otherwise specifically provided herein,
any officer of the corporation shall have the authority to affix the seal to
any
document requiring it.
6.04
Fiscal Year-End. The fiscal year-end of the corporation shall be such date
as
may be fixed from time to time by resolution of the Board of
Directors.
6.05
Reserves. The Board of Directors may create, by resolution, such reserves as
the
directors may, from time to time, in their discretion, deem proper to provide
for contingencies, or to equalize distributions or to repair or maintain any
property of the corporation, or for such other purpose as the Board of Directors
may deem beneficial to the corporation, and the directors may modify or abolish
any such reserves in the manner in which they were created.
ARTICLE
VII
INDEMNIFICATION
7.01
Indemnification and Insurance.
(a)
Indemnification of Directors and Officers.
(i)
For
purposes of this Article, (A) "Indemnitee" shall mean each director or officer
who was or is a party to, or is threatened to be made a party to, or is
otherwise involved in, any Proceeding (as hereinafter defined), by reason of
the
fact that he or she is or was a director or officer of the Corporation or is
or
was serving in any capacity at the request of the Corporation as a director,
officer, employee, agent, partner, member, managing member, manager or fiduciary
of, or in any other capacity for, another corporation or any partnership, joint
venture, limited liability company, trust, or other enterprise; and (B)
"Proceeding" shall mean any threatened, pending, or completed action, suit
or
proceeding (including, without limitation, an action, suit or proceeding by
or
in the right of the Corporation), whether civil, criminal, administrative,
or
investigative.
(ii)
Each
Indemnitee shall be indemnified and held harmless by the Corporation to the
fullest extent permitted by Nevada law, against all expense, liability and
loss
(including, without limitation, attorneys' fees, judgments, fines, taxes,
penalties, and amounts paid or to be paid in settlement) reasonably incurred
or
suffered by the Indemnitee in connection with any Proceeding; provided that
such
Indemnitee either is not liable pursuant to NRS 78.138 or acted in good faith
and in a manner such Indemnitee reasonably believed to be in or not opposed
to
the best interests of the Corporation and, with respect to any Proceeding that
is criminal in nature, had no reasonable cause to believe that his or her
conduct was unlawful. The termination of any Proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent,
does
not, of itself, create a presumption that the Indemnitee is liable pursuant
to
NRS 78.138 or did not act in good faith and in a manner in which he or she
reasonably believed to be in or not opposed to the best interests of the
Corporation, or that, with respect to any criminal proceeding he or she had
reasonable cause to believe that his or her conduct was unlawful. The
Corporation shall not indemnify an Indemnitee for any claim, issue or matter
as
to which the Indemnitee has been adjudged by a court of competent jurisdiction,
after exhaustion of all appeals therefrom, to be liable to the Corporation
or
for any amounts paid in settlement to the Corporation, unless and only to the
extent that the court in which the Proceeding was brought or other court of
competent jurisdiction determines upon application that in view of all the
circumstances of the case, the Indemnitee is fairly and reasonably entitled
to
indemnity for such amounts as the court deems proper. Except as so ordered
by a
court and for advancement of expenses pursuant to this Section, indemnification
may not be made to or on behalf of an Indmenitee if a final adjudication
establishes that his or her acts or omissions involved intentional misconduct,
fraud or a knowing violation of law and was material to the cause of
action.
(iii)
Indemnification pursuant to this Section shall continue as to an Indemnitee
who
has ceased to be a director or officer and shall inure to the benefit of his
or
her heirs, executors and administrators.
(iv)
The
expenses of directors and officers incurred in defending a Proceeding involving
alleged acts or omissions of such director or officer in his or her capacity
as
a director or officer of the Corporation or while serving in any capacity at
the
request of the Corporation as a director, officer, employee, agent, partner,
member, managing member, manager or fiduciary of, or in any other capacity
for,
another corporation or any partnership, joint venture, trust, or other
enterprise, must be paid by the Corporation or through insurance purchased
and
maintained by the Corporation or through other financial arrangements made
by
the Corporation, as they are incurred and in advance of the final disposition
of
the Proceeding, upon receipt of an undertaking by or on behalf of the director
or officer to repay the amount if it is ultimately determined by a court of
competent jurisdiction that he or she is not entitled to be indemnified by
the
Corporation. To the extent that a director or officer of the Corporation is
successful on the merits or otherwise in defense of any Proceeding, or in the
defense of any claim, issue or matter therein, the Corporation shall indemnify
him or her against expenses, including attorneys' fees, actually and reasonably
incurred in by him or her in connection with the defense.
(b)
Indemnification of Employees and Other Persons. The Corporation may, by action
of its Board of Directors and to the extent provided in such action, indemnify
employees and other persons as though they were Indemnitees.
(c)
Non-Exclusivity of Rights. The rights to indemnification provided in this
Article shall not be exclusive of any other rights that any person may have
or
hereafter acquire under any statute, provision of the Articles of Incorporation
or these Bylaws, agreement, vote of stockholders or directors, or
otherwise.
(d)
Insurance. The Corporation may purchase and maintain insurance or make other
financial arrangements on behalf of any person who is or was a director,
officer, employee, or agent of the Corporation or member or managing member
of a
predecessor limited liability company or affiliate of such limited liability
company, or is or was serving at the request of the Corporation as a director,
officer, employee, member, managing member or agent of another Corporation,
partnership, limited liability company, joint venture, trust, or other
enterprise for any liability asserted against him or her and liability and
expenses incurred by him or her in his or her capacity as a director, officer,
employee or agent, or arising out of his or her status as such, whether or
not
the Corporation has the authority to indemnify him or her against such liability
and expenses.
(e)
Other
Financial Arrangements. The other financial arrangements which may be made
by
the Corporation may include the following (i) the creation of a trust fund;
(ii)
the establishment of a program of self-insurance; (iii) the securing of its
obligation of indemnification by granting a security interest or other lien
on
any assets of the Corporation; (iv) the establishment of a letter of credit,
guarantee or surety. No financial arrangement made pursuant to this subsection
may provide protection for a person adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable for
intentional misconduct, fraud, or a knowing violation of law, except with
respect to advancement of expenses or indemnification ordered by a
court.
(f)
Other
Matters Relating to Insurance or Financial Arrangements. Any insurance or other
financial arrangement made on behalf of a person pursuant to this Section may
be
provided by the Corporation or any other person approved by the Board of
Directors, even if all or part of the other person's stock or other securities
is owned by the Corporation. In the absence of fraud (i) the decision of the
Board of Directors as to the propriety of the terms and conditions of any
insurance or other financial arrangement made pursuant to this Section and
the
choice of the person to provide the insurance or other financial arrangement
is
conclusive; and (ii) the insurance or other financial arrangement is not void
or
voidable and does not subject any director approving it to personal liability
for his action; even if a director approving the insurance or other financial
arrangement is a beneficiary of the insurance or other financial
arrangement.
7.02
Amendment. The provisions of this Article VII relating to indemnification shall
constitute a contract between the Corporation and each of its directors and
officers which may be modified as to any director or officer only with that
person's consent or as specifically provided in this Section. Notwithstanding
any other provision of these Bylaws relating to their amendment generally,
any
repeal or amendment of this Article which is adverse to any director or officer
shall apply to such director or officer only on a prospective basis, and shall
not limit the rights of an Indemnitee to indemnification with respect to any
action or failure to act occurring prior to the time of such repeal or
amendment. Notwithstanding any other provision of these Bylaws (including,
without limitation, Article VIII below), no repeal or amendment of these Bylaws
shall affect any or all of this Article VII so as to limit or reduce the
indemnification in any manner unless adopted by (a) the unanimous vote of the
directors of the Corporation then serving, or (b) by the stockholders as set
forth in Article VIII hereof; provided that no such amendment shall have a
retroactive effect inconsistent with the preceding sentence.
ARTICLE
VIII
AMENDMENT
OR REPEAL
8.01
Amendment or Repeal. Except as otherwise restricted in the Articles of
Incorporation or these Bylaws:
(a)
Any
provision of these Bylaws may be altered, amended or repealed by the Board
of
Directors at the a meeting of the Board of Directors without prior notice,
or at
any special meeting of the Board of Directors if notice of such alteration,
amendment or repeal is contained in the notice of such special
meeting.
(b)
These
Bylaws may also be altered, amended, or repealed at a duly convened meeting
of
the stockholders by the affirmative vote of the holders of a majority of the
voting power of the corporation entitled to vote. The stockholders may provide
by resolution that any Bylaw provision altered, amended or repealed by them,
or
any Bylaw provision adopted by them, may not be altered, amended or repealed
by
the Board of Directors.
ARTICLE
IX
CHANGES
IN NEVADA LAW
9.01
Changes in Nevada Law. References in these Bylaws to Nevada law or the Nevada
Revised Statutes or to any provision thereof shall be to such law as it existed
on the date these Bylaws were adopted or as such law thereafter may be changed;
provided that (a) in the case of any change which expands the liability of
directors or officers or limits the indemnification rights or the rights to
advancement of expenses which the corporation may provide in Article VII hereof,
the rights to limited liability, to indemnification and to the advancement
of
expenses provided in the corporation's Articles of Incorporation and/or these
Bylaws shall continue as theretofore to the extent permitted by law; and (b)
if
such change permits the corporation, without the requirement of any further
action by stockholders or directors, to limit further the liability of directors
or officers or to provide broader indemnification rights or rights to the
advancement of expenses than the corporation was permitted to provide prior
to
such change, then liability thereupon shall be so limited and the rights to
indemnification and the advancement of expenses shall be so broadened to the
extent permitted by law.
Effective
as of October 9, 2008