FOURTH
AMENDED AND RESTATED BYLAWS
OF
CHINA
RECYCLING ENERGY CORPORATION
ARTICLE
I
OFFICES
Section 1.1
Registered
Office
. The registered office and registered agent of China
Recycling Energy Corporation (the “Corporation”) will be as from time to time
set forth in the Corporation’s Articles of Incorporation or in any certificate
filed with the Secretary of State of the State of Nevada to amend such
information.
Section 1.2
Other
Offices
. The Corporation may also have offices at such other
places, both within and without the State of Nevada, as the Board of Directors
may from time to time determine or the business of the Corporation may
require.
ARTICLE
II
STOCKHOLDERS
Section 2.1
Place of
Meetings
. All meetings of the stockholders for the election of
Directors will be held at such place, within or without the State of Nevada or
the United States of America, as may be fixed from time to time by the Board of
Directors. Meetings of stockholders for any other purpose may be held
at such time and place, within or without the State of Nevada or the United
States of America, as may be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2.2
Annual
Meeting
. An annual meeting of the stockholders will be held at
such time as may be determined by the Board of Directors, at which meeting the
stockholders will elect a Board of Directors and transact such other business as
may properly be brought before the meeting.
Section 2.3
List of
Stockholders
. At least ten (10) days before each meeting of
stockholders, a complete list of the stockholders entitled to vote at such
meeting, arranged in alphabetical order, with the address of and the number of
voting shares registered in the name of each, will be prepared by the officer or
agent having charge of the stock transfer books. Such list will be
kept on file at the registered office of the Corporation for a period of ten
(10) days prior to such meeting and will be subject to inspection by any
stockholder at any time during usual business hours. Such list will
be produced and kept open at the time and place of the meeting during the whole
time thereof, and will be subject to the inspection of any stockholder who may
be present.
Section 2.4
Special
Meetings
. Unless otherwise required by law or the Articles of
Incorporation, as the same may be amended, restated or supplemented from time to
time (the “Articles of Incorporation”), special meetings of stockholders, for
any purpose or purposes, may be called by either (i) the Chairman of the Board
of Directors, (ii) the Chief Executive Officer or President or (iii) the
Board of Directors. Such request shall state the purpose or purposes
of the proposed meeting. At a special meeting of stockholders, only
such business shall be conducted as shall be specified in the notice of meeting
(or any supplement thereto). The ability of the stockholders to call
a special meeting of stockholders is hereby specifically denied.
Section 2.5
Notice
. Written
or printed notice stating the place, day and hour of any meeting of
the stockholders and, in case of a special meeting, the purpose or purposes for
which the meeting is called, will be delivered not less than ten (10) nor more
than sixty (60) days before the date of the meeting, either personally or by
mail, by or at the direction of the President, the Secretary, or the officer or
person calling the meeting, to each stockholder of record entitled to vote at
the meeting. If mailed, such notice will be deemed to be delivered when
deposited in the United States mail, addressed to the stockholder at his address
as it appears on the stock transfer books of the Corporation, with postage
thereon prepaid. Only such business shall be conducted at a special meeting of
stockholders of which notice shall have been given in accordance
herewith. Any proper matter for stockholder action may be brought
before an annual meeting of stockholders, provided that notice of any such
matter to be brought before the meeting by any stockholder shall have been given
to the corporation as provided by Section 2.11 hereof.
Section 2.6
Quorum
. With
respect to any matter, the presence in person or by proxy of the holders of
one-third (33 1/3%) of the shares entitled to vote on that matter will be
necessary and sufficient to constitute a quorum for the transaction of business
except as otherwise provided by law, the Articles of Incorporation or these
Bylaws. If, however, such quorum is not present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present
in person or represented by proxy, will have power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum is present or represented. If the adjournment is for more than thirty
(30) days or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting will be given to each
stockholder of record entitled to vote at the meeting. At such adjourned meeting
at which a quorum is present or represented, any business may be transacted that
might have been transacted at the meeting as originally notified.
Section 2.7
Voting
. When
a quorum is present at any meeting of the Corporation’s stockholders, the vote
of the holders of a majority of the shares entitled to vote that are actually
voted on any question brought before the meeting will be sufficient to decide
such question; provided that if the question is one upon which, by express
provision of law, the Articles of Incorporation or these Bylaws, a different
vote is required, such express provision shall govern and control the decision
of such question.
Section 2.8
Method of
Voting
. Each outstanding share of the Corporation’s capital
stock, regardless of class or series, will be entitled to one vote on each
matter submitted to a vote at a meeting of stockholders, except to the extent
that the voting rights of the shares of any class or series are limited or
denied by the Articles of Incorporation, as amended from time to time. At any
meeting of the stockholders, every stockholder having the right to vote will be
entitled to vote in person or by proxy executed in writing by such stockholder
and bearing a date not more than six (6) months prior to such meeting, unless it
is coupled with an interest, or unless such instrument provides for a longer
period, which may not exceed 7 years from the date of its creation. A telegram,
telex, cablegram or similar transmission by the stockholder, or a photographic,
photostatic, facsimile or similar reproduction of a writing executed
by the stockholder, shall be treated as an execution in writing for purposes of
the preceding sentence. Subject to these restrictions every properly
created proxy is not revoked and shall continue 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. Such proxy will be filed with the Secretary of the Corporation
prior to or at the time of the meeting. Voting for Directors will be in
accordance with Article III of these Bylaws. Voting on any question
or in any election may be by voice vote or show of hands unless the presiding
officer orders or any stockholder demands that voting be by written
ballot.
Section 2.9
Record
Date; Closing Transfer Books
. The Board of Directors may fix in advance a
record date for the purpose of determining stockholders entitled to notice of or
to vote at a meeting of stockholders, such record date to be not less than ten
(10) nor more than sixty (60) days prior to such meeting, or the Board of
Directors may close the stock transfer books for such purpose for a period of
not less than ten (10) nor more than sixty (60) days prior to such
meeting. In the absence of any action by the Board of Directors, the
date upon which the notice of the meeting is mailed will be the record
date.
Section 2.10
Action by
Consent
. Except as prohibited by law, any action
required or permitted by law, the Articles of Incorporation or these Bylaws to
be taken at a meeting of the stockholders of the Corporation may be taken
without a meeting if a consent or consents in writing, setting forth the action
so taken, is signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and voted
and will be delivered to the Corporation by delivery to its registered office in
Nevada, its principal place of business or an officer or agent of the
Corporation having custody of the minute book.
Section
2.11
Notice of
Stockholder Nominations and Other Proposed Stockholder A
c
tion
.
(a)
Annual Meetings of
Stockholders
.
(1) Nominations
of persons for election as directors and the proposal of matters to be
considered and voted on by the stockholders at a meeting of stockholders may be
made only (i) by or at the direction of the Board of Directors or
(ii) by any stockholder of the corporation who was a stockholder of record
at the time of giving the notice required by this Section and who shall be
entitled to vote at the meeting (or a duly authorized proxy therefor) and who
complies with the notice procedures set forth in this Section.
(2) For
nominations or other proposals to be properly brought before an annual meeting
of stockholders by a stockholder pursuant to paragraph (a)(1) of this
Section, the stockholder must have given timely notice thereof (including the
information required hereby) in writing to the Secretary of the corporation and
any such proposal must otherwise be a proper matter for stockholder
action. To be timely, a stockholder’s notice shall be delivered to
the Secretary at the principal executive offices of the corporation not later
than the close of business on the 90th calendar day nor earlier than the close
of business on the 120th calendar day prior to the first anniversary of the
preceding year’s annual meeting; provided, however, that in the event that the
date of the annual meeting is more than 30 calendar days before or more than 60
calendar days after such anniversary date, notice by the stockholder to be
timely must be so delivered not earlier than the close of business on the 120th
calendar day prior to such annual meeting and not later than the close of
business on the later of the 90th calendar day prior to such annual meeting or
the 10th calendar day following the calendar day on which public announcement of
the date of such meeting is first made by the corporation. In no
event shall the public announcement of an adjournment or postponement of an
annual meeting commence a new time period or extend any time period for the
giving of a stockholder’s notice of a nomination or proposed action as described
above. Such stockholder’s notice shall set
forth: (a) as to each person whom the stockholder proposes to
nominate for election or reelection as a director, (i) the name, age,
business address and residence address of the person, (ii) the principal
occupation and employment of the person, (iii) the class or series and
number of shares of capital stock of the corporation which are owned
beneficially or of record by the person and (iv) all information relating
to such person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), and Rule 14a-11 thereunder (or any successor
provision of law), including such person’s written consent to being named as a
nominee and to serving as a director if elected; (b) as to any other
business that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the text
of the proposal or business (including the text of any resolutions proposed for
consideration and, in the event that such business includes a proposal to amend
the Bylaws, the language of the proposed amendment), the reasons for conducting
such business at the meeting and any material interest in such business of such
stockholder and of any of such stockholder’s affiliates (as defined below) and
of any person who is the beneficial owner (as defined below), if any, of such
stock and any other information relating to the stockholder, the beneficial
owner or proposed business that would be required to be disclosed in
solicitations of proxies relating to the proposed items of business pursuant to
Regulation 14A under the Exchange Act and Rule 14a-11 thereunder (or any
successor provision of law); and (c) as to the stockholder giving the
notice and each beneficial owner, if any, of such stock, (i) the name and
address of such stockholder, as they appear on the corporation’s stock ownership
records, (ii) the name and address of each beneficial owner of such stock,
(iii) the class and number of shares of capital stock of the corporation
which are owned of record or beneficially by each such person, (iv) in the
case of a proposal for a nomination for election or reelection of a director,
(1) a description of all arrangements or understandings between such
stockholder and each proposed nominee and any other person or persons (including
their names) pursuant to which the nomination(s) are to be made by such
stockholder, (2) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting to nominate the person named in its
notice, (3) a representation whether the stockholder or the beneficial
owner, if any, intends or is part of a group which intends to (x) deliver a
proxy statement and/or form of proxy to holders of at least the percentage of
the corporation’s outstanding capital stock required to elect the nominee and/or
(y) otherwise solicit proxies from stockholders in support of such
nomination, and (4) any other information relating to such stockholder that
would be required to be disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act, and the rules and regulations
promulgated thereunder, and (v) in the case of any other proposal of a
stockholder, (1) a description of all arrangements or understandings
between such stockholder and any other person or persons (including their names)
pursuant to which the proposals are to be made by such stockholder, (2) a
representation that such stockholder intends to appear in person or by proxy at
the annual meeting to propose the items of business set forth in the notice,
(3) a representation whether the stockholder or the beneficial owner, if
any, intends or is part of a group which intends to (x) deliver a proxy
statement and/or form of proxy to holders of at least the percentage of the
corporation’s outstanding capital stock required to approve or adopt the
proposal and/or (y) otherwise solicit proxies from stockholders in support
of such proposal, and (4) any other information relating to such
stockholder, beneficial owner or proposed business that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies in support of such proposal pursuant to
Section 14 of the Exchange Act, and the rules and regulations promulgated
thereunder. The corporation may require the stockholder to furnish
such other information as it may reasonably require to determine whether each
proposed item of business is a proper matter for stockholder action or to
determine the eligibility of such proposed nominee to serve as a director of the
corporation.
(b)
Special Meetings of
Stockholders
. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting
pursuant to the corporation’s notice of meeting under Section 2.5 of these
Bylaws. Nominations of persons for election to the Board of Directors
at a special meeting of stockholders at which directors are to be elected
pursuant to the corporation’s notice of meeting may be made only (i) by or
at the direction of the Board of Directors or (ii) provided that the Board
of Directors has determined that directors shall be elected at such meeting, by
any stockholder of the corporation who is a stockholder of record at the time of
giving the notice required by this Section and who shall be entitled to vote at
the meeting (or a duly authorized proxy therefor) and who complies with the
procedures set forth in this Section. In the event the corporation
calls a special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, for nominations to be properly brought
before the special meeting by a stockholder pursuant to this paragraph, the
stockholder must give notice thereof containing the information required in the
case of a nomination to be made by a stockholder at an annual meeting of
stockholders by paragraph (a)(2) of this Section to the Secretary of the
corporation at the principal executive offices of the corporation not earlier
than the close of business on the 120th calendar day prior to such special
meeting and not later than the close of business on the later of the 90th
calendar day prior to such special meeting or the 10th calendar day following
the day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected at
such meeting. In no event shall the public announcement of an
adjournment of a special meeting commence a new time period for the giving of a
stockholder’s notice of a nomination as described above.
(c)
General
.
(1) Only
such persons who are nominated in accordance with the procedures set forth in
this Section shall be eligible to be elected as directors (except as may be
otherwise provided in the Articles of Incorporation) and only such business
shall be conducted at a meeting of stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in this
Section. Except as otherwise provided by law, the Articles of
Incorporation or these Bylaws, the Chairman of the meeting shall have the power
and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Section and, if any proposed
nomination or business is not in compliance with this Section, to declare that
such defective proposal or nomination shall be disregarded.
(2) For
purposes of this Section, “affiliate” in respect of a person shall mean another
person who controls, is controlled by or is under common control with such
person and the term “beneficially owns” (and variations thereof) shall have the
same meaning as when used in Section 13(d) of the Exchange Act and
Regulation 13D-G thereunder (or any successor provision of law). For
purposes of this Section, “public announcement” shall mean disclosure in a press
release reported by a national news service or in a document publicly filed by
the corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding
the foregoing provisions of this Section, (i) a stockholder shall also be
required to comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this
Section and nothing contained herein shall constitute a waiver by the
corporation or any stockholder of compliance therewith and (ii) nothing in
this Section shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the corporation’s proxy statement pursuant to Rule
14a-8 under the Exchange Act (or any successor provision of law).
ARTICLE
III
BOARD
OF DIRECTORS
Section 3.1
Management
.
The business and affairs of the Corporation will be managed by or under the
direction of the Board of Directors, who may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law, the
Articles of Incorporation or these Bylaws directed or required to be exercised
or done by the stockholders.
Section 3.2
Qualification;
Election; Term
. Each Director must be a natural person at least 18 years
of age. None of the Directors need be a stockholder of the Corporation or a
resident of the State of Nevada. The Directors will be elected by
plurality vote at the annual meeting of the stockholders, except as hereinafter
provided, and each Director elected will hold office until whichever of the
following occurs first: his successor is elected and qualified, his resignation,
his removal from office by the stockholders or his death.
Section 3.3
Number
.
The number of Directors of the Corporation will be such number as determined by
the Board of Directors. The number of Directors authorized will be
increased or decreased as the Board of Directors may from time to time
designate, but at no time shall the number of directors exceed 11 or be less
than 3. No decrease in the number of Directors will have the effect
of shortening the term of any incumbent Director.
Section 3.4
Removal
. Any
Director may be removed either for or without cause at any special meeting of
stockholders by the affirmative vote of the stockholders representing not less
than two-thirds of the voting power of the issued and outstanding stock entitled
to voting power; provided, that notice of intention to act upon such matter has
been given in the notice calling such meeting.
Section 3.5
Vacancies
. All
vacancies in the Board of Directors, 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, unless provided for in the Articles of
Incorporation. A Director elected to fill a vacancy will be elected
for the unexpired term of his predecessor in office.
Section 3.6
Place of
Meetings
. Meetings of the Board of Directors, regular or special, may be
held at such place within or without the State of Nevada or the United States of
America as may be fixed from time to time by the Board of
Directors.
Section 3.7
Annual
Meeting
. The first meeting of each newly elected Board of
Directors will be held without further notice immediately
following the annual meeting of stockholders and at the same place,
unless by unanimous consent, the Directors then elected and serving shall change
such time or place.
Section 3.8
Regular
Meetings
. Regular meetings of the Board of Directors may be
held without notice at such time and place as is from time to time determined by
resolution of the Board of Directors.
Section 3.9
Special
Meetings
. Special meetings of the Board of Directors may be
called by the Chairman of the Board on oral or written notice to each Director,
given either personally, by telephone, by telegram or by mail; special meetings
will be called by the Chairman of the Board or the Secretary in like manner and
on like notice on the written request of at least three (3)
Directors. Except as may be otherwise expressly provided by law, the
Articles of Incorporation or these Bylaws, neither the business to be transacted
at, nor the purpose of, any special meeting need be specified in a notice or
waiver of notice.
Section 3.10
Quorum
.
At all meetings of the Board of Directors the presence of a majority of the
number of Directors then in office will be necessary and sufficient to
constitute a quorum for the transaction of business, and the affirmative vote of
at least a majority of the Directors present at any meeting at which there is a
quorum will be the act of the Board of Directors, except as may be otherwise
specifically provided by law, the Articles of Incorporation or these
Bylaws. If a quorum is not present at any meeting of the Board of
Directors, the Directors present thereat may adjourn the meeting from time to
time without notice other than announcement at the meeting, until a quorum is
present.
Section 3.11
Interested
Directors
. No contract or transaction between the Corporation
and one or more of its Directors or officers, or between the Corporation and any
other corporation, partnership, association or other organization in which one
or more of the Corporation’s Directors or officers are Directors or officers or
have a financial interest, will be void or voidable solely for this reason,
solely because the Director or officer is present at or participates in the
meeting of the Board of Directors or committee thereof that authorizes the
contract or transaction, or solely because his or their votes are counted for
such purpose, if: (i) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee responsible for reviewing any related party
transactions, and the Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative vote of a majority of the
disinterested Directors, even though the disinterested Directors be less than a
quorum, (ii) the material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders or (iii) the contract or transaction is
fair as to the Corporation as of the time it is authorized, approved or ratified
by the Board of Directors, a committee thereof or the
stockholders. Interested Directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
that authorizes the contract or transaction.
Section 3.12
Committees
. The
Board of Directors may, by resolution passed by a majority of the entire Board
of Directors, designate committees, each committee to consist of one (1) or more
Directors of the Corporation, which committees will have such power and
authority and will perform such functions as may be provided in such
resolution. Such committee or committees will have such name or names
as may be designated by the Board of Directors and will keep regular minutes of
their proceedings and report the same to the Board of Directors when
required.
Section 3.13
Action by
Consent
. Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee of the Board of Directors may
be taken without such a meeting if a consent or consents in writing, setting
forth the action so taken, is signed by all the members of the Board of
Directors or such committee, as the case may be.
Section 3.14
Compensation
of Directors
. Directors will receive such compensation for
their services and reimbursement for their expenses as the Board of Directors,
by resolution, may establish; provided that nothing herein contained will be
construed to preclude any Director from serving the Corporation in any other
capacity and receiving compensation therefor.
ARTICLE
IV
NOTICE
Section 4.1
Form of
Notice
. Whenever by law, the Articles of Incorporation or
these Bylaws, notice is to be given to any Director or stockholder, and no
provision is made as to how such notice is to be given, such notice may be
given: (i) in writing, by mail, postage prepaid, addressed to such Director or
stockholder at such address as appears on the books of the Corporation or (ii)
in any other method permitted by law. Any notice required or
permitted to be given by mail will be deemed to be given at the time the same is
deposited in the United States mail.
Section 4.2
Waiver
. Whenever
any notice is required to be given to any stockholder or Director of the
Corporation as required by law, the Articles of Incorporation or these Bylaws, a
waiver thereof in writing signed by the person or persons entitled to such
notice, whether before or after the time stated in such notice, will be
equivalent to the giving of such notice. Attendance of a stockholder
or Director at a meeting will constitute a waiver of notice of such meeting,
except where such stockholder or Director attends for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
on the ground that the meeting has not been lawfully called or
convened.
ARTICLE
V
OFFICERS
AND AGENTS
Section 5.1
In
General
. The officers of the Corporation will be elected by
the Board of Directors and will be a President, Secretary and
Treasurer. The Board of Directors may also elect a Chairman of the
Board, Vice Chairman of the Board, Vice Presidents, Assistant Vice Presidents,
Assistant Secretaries and Assistant Treasurers. Any two (2) or more
offices may be held by the same person.
Section 5.2
Election
. The
Board of Directors, at its first meeting after each annual meeting of
stockholders, will elect the officers, none of whom need be a member of the
Board of Directors.
Section 5.3
Other
Officers and Agents
. The Board of Directors may also elect and
appoint such other officers and agents as it deems necessary, who will be
elected and appointed for such terms and will exercise such powers and perform
such duties as may be determined from time to time by the Board of
Directors.
Section 5.4
Compensation
. The
compensation of all officers and agents of the Corporation will be fixed by the
Board of Directors or any committee of the Board of Directors, if so authorized
by the Board of Directors.
Section 5.5
Term of
Office and Removal
. Each officer of the Corporation will hold
office until his death, his resignation or removal from office, or the election
and qualification of his successor, whichever occurs first. Any officer or agent
elected or appointed by the Board of Directors may be removed at any time, for
or without cause, by the affirmative vote of a majority of the entire Board of
Directors, but such removal will not prejudice the contract rights, if any, of
the person so removed. If the office of any officer becomes vacant
for any reason, the vacancy may be filled by the Board of
Directors.
Section 5.6
Employment
and Other Contracts
. The Board of Directors may authorize any
officer or officers or agent or agents to enter into any contract or execute and
deliver any instrument in the name or on behalf of the Corporation, and such
authority may be general or confined to specific instances. The Board
of Directors may, when it believes the interest of the Corporation will best be
served thereby, authorize executive employment contracts that contain such terms
and conditions as the Board of Directors deems appropriate. Nothing
herein will limit the authority of the Board of Directors to authorize
employment contracts for shorter terms.
Section 5.7
Chairman
of the Board of Directors
. If the Board of Directors has
elected a Chairman of the Board, he will preside at all meetings of the
stockholders and the Board of Directors. Except where by law the
signature of the President is required, the Chairman will have the same power as
the President to sign all certificates, contracts and other instruments of the
Corporation. During the absence or disability of the President, the
Chairman will exercise the powers and perform the duties of the
President.
Section 5.8
President
.
The President will be the Chief Executive Officer of the Corporation, unless
another person is elected to serve in such capacity, and, subject to the control
of the Board of Directors, will supervise and control all of the business and
affairs of the Corporation. He will, in the absence of the Chairman
of the Board, preside at all meetings of the stockholders and the Board of
Directors. The President will have all powers and perform all duties
incident to the office of President and will have such other powers and perform
such other duties as the Board of Directors may from time to time
prescribe.
Section 5.9
Vice
Presidents
. Each Vice President will have the usual and
customary powers and perform the usual and customary duties incident to the
office of Vice President, and will have such other powers and perform such other
duties as the Board of Directors or any committee thereof may from time to time
prescribe or as the President may from time to time delegate to him. In the
absence or disability of the President and the Chairman of the Board, a Vice
President designated by the Board of Directors, or in the absence of such
designation the Vice Presidents in the order of their seniority in office, will
exercise the powers and perform the duties of the President.
Section 5.10
Secretary
. The
Secretary will attend all meetings of the stockholders and record all votes and
the minutes of all proceedings in a book to be kept for that
purpose. The Secretary will perform like duties for the Board of
Directors and committees thereof when required. The Secretary will
give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors. The Secretary will keep
in safe custody the seal of the Corporation. The Secretary will be under the
supervision of the President. The Secretary will have such other
powers and perform such other duties as the Board of Directors may from time to
time prescribe or as the President may from time to time delegate to
him.
Section 5.11
Assistant
Secretaries
. The Assistant Secretaries in the order of their
seniority in office, unless otherwise determined by the Board of Directors,
will, in the absence or disability of the Secretary, exercise the powers and
perform the duties of the Secretary. They will have such other powers and
perform such other duties as the Board of Directors may from time to time
prescribe or as the President may from time to time delegate to
them.
Section 5.12
Treasurer
. The
Treasurer will have responsibility for the
receipt
and disbursement of all corporate funds and securities, will keep full and
accurate accounts of such receipts and disbursements, and will deposit or cause
to be deposited all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer will render to the Directors whenever they may
require it an account of the operating results and financial condition of the
Corporation, and will have such other powers and perform such other duties as
the Board of Directors may from time to time prescribe or as the President may
from time to time delegate to him.
Section 5.13
Assistant
Treasurers
. The Assistant Treasurers in the order of their seniority in
office, unless otherwise determined by the Board of Directors, will, in the
absence or disability of the Treasurer, exercise the powers and perform the
duties of the Treasurer. They will have such other powers and perform such other
duties as the Board of Directors may from time to time prescribe or as the
President may from time to time delegate to them.
Section 5.14
Bonding
. The
Corporation may secure a bond to protect the Corporation from loss in the event
of defalcation by any of the officers, which bond may be in such form and amount
and with such surety as the Board of Directors may deem
appropriate.
ARTICLE
VI
CERTIFICATES
REPRESENTING SHARES
Section 6.1
Certificates
for Shares
. Certificates representing shares of the
Corporation shall be in such form as shall be determined by the Directors,
provided that the Directors may provide by resolution or resolutions that some
or all of any or all classes or series of the capital stock of the Corporation
shall be uncertificated shares. Any such resolution or resolutions shall not
apply to any such shares represented by a certificate theretofore issued until
such certificate is surrendered to the Corporation or its transfer agent or
reported lost, stolen or destroyed pursuant to Section 6.2 of this
Article VI.
A record
of all shares of capital stock issued by the Corporation shall be kept by the
Secretary or any other officer or employee of the Corporation designated by the
Secretary or by any transfer clerk or transfer agent appointed by the
Corporation. Such record shall show the name and address of the registered
holder of shares of capital stock; the number and class of such shares held by
the registered holder; the numbers of the certificates covering such shares, if
certificated; the date of each such certificate; the par value of such shares or
a statement that such shares are without par value; and in the case of
certificates that have been cancelled, the dates of cancellation
thereof.
Such
certificates shall be signed by the President and by the Secretary or by such
other officers authorized by law and by the Directors, and sealed with the seal
of the Corporation or a facsimile. The signatures of such officers upon a
certificate may be facsimiles if the certificate is countersigned by a transfer
agent or registered by a registrar other than the Corporation itself or one of
its employees.
Within a
reasonable time after the issuance or transfer of uncertificated shares of any
class or series of stock, the Corporation shall send to the registered owner
thereof (i) a written notice containing the information required by law to
be set forth or stated on certificates representing shares of such class or
series as well as any legends authorized by the Directors or (ii) a
statement that the Corporation will furnish without charge to each stockholder
who so requests a statement of the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights, and any legends authorized by the
Directors.
Section 6.2
Lost
Certificates
. The Corporation may issue a new certificate or
uncertificated shares in place of any certificate for shares of capital stock
theretofore issued by the Corporation, alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate to be lost, stolen or destroyed. The Directors, in their
discretion and as a condition precedent to the issuance of any new certificate
or uncertificated shares, may require the owner of such lost, stolen or
destroyed certificate, or his legal representative, to advertise the same in
such manner as it shall specify and/or to give the Corporation a bond in such
form, in such sum, and with such surety or sureties as it may direct as
indemnity against any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen or
destroyed.
Section 6.3
Transfer
of Shares
. (a) Shares of stock shall be transferable only on
the books of the Corporation by the holder thereof in person or by his duly
authorized attorney. Upon surrender to the Corporation or the transfer agent of
the Corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation or the transfer agent of the
Corporation to issue a new certificate or evidence of the issuance of
uncertificated shares to the person entitled thereto, cancel the old certificate
and record the transaction upon its books. Upon the receipt of proper transfer
instructions from the registered owners of uncertificated shares, it shall be
the duty of the Corporation or the transfer agent of the Corporation to issue a
new certificate or evidence of the issuance of uncertificated shares to the
person entitled thereto, cancel the old shares, and record the transaction upon
its books.
(b) The Corporation shall be entitled
to treat the holder of record of any share or shares of stock as the holder in
fact thereof for any and all purposes, and, accordingly, shall not be bound to
recognize any equitable or other claim or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by law.
Section 6.4
Transfer
Agent
. The Directors shall have power to appoint one or more
transfer agents and registrars for the transfer and registration of certificates
of stock or uncertificated shares of any class, and may require that any stock
certificates shall be countersigned and registered by one or more of such
transfer agents and registrars.
ARTICLE
VII
INDEMNIFICATION
AND INSURANCE
Section
7.01
Indemnification
and Insurance
.
(a)
Indemnification of Directors
and Officers
.
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(1)
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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, or fiduciary
of, or in any other capacity for, another Corporation or any partnership,
joint venture, 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.
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(2)
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Each
Indemnitee shall be indemnified and held harmless by the Corporation for
all actions taken by him or her and for all omissions (regardless of the
date of any such action or omission), 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.
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(3)
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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.
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(b)
Advancement of
Expenses
. Expenses of officers and directors incurred in
defending a civil or criminal action, suit or proceeding must be paid by the
Corporation as they are incurred and in advance of the final disposition of the
action, suit or 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.
(c)
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.
(d)
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 Corporation's Articles of
Incorporation or Bylaws, agreement, vote of stockholders or Directors, or
otherwise.
(e)
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 is or was serving at the request of the
Corporation as a Director, officer, employee or agent of another Corporation,
partnership, joint venture, trust or other enterprise 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.
(f)
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.
(g)
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:
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(1)
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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
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(2) the
insurance or other financial arrangement:
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(A)
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is
not void or voidable; and
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(B)
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does
not subject any Director approving it to personal liability for his
action,
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even if a
Director approving the insurance or other financial arrangement is a beneficiary
of the insurance or other financial arrangement.
Section 7.02
Amendment
. The
provisions of this Article 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, no
repeal or amendment of these Bylaws shall affect any or all of this Article 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; provided that no such amendment shall have retroactive effect
inconsistent with the preceding sentence.
Section 7.03
Changes
in Nevada Law
. References in this Article to Nevada law or to
any provision thereof shall be to such law as it existed on the date this
Article was 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, the rights to limited liability, to
indemnification and to the advancement of expenses provided in the Corporation's
Articles of Incorporation or these Bylaws or both 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 limit the liability of 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.
ARTICLE
VIII
GENERAL
PROVISIONS
Section 8.1
Dividends
. Dividends
upon the outstanding shares of the Corporation, subject to the provisions of the
Articles of Incorporation, if any, may be declared by the Board of Directors at
any regular or special meeting. Dividends may be declared and paid in
cash, in property, or in shares of the Corporation, subject to the provisions of
Chapter 78 of the Nevada Revised Statutes and the Articles of
Incorporation. The Board of Directors may fix in advance a record
date for the purpose of determining stockholders entitled to receive payment of
any dividend, such record date to be not more than sixty (60) days prior to the
payment date of such dividend, or the Board of Directors may close the stock
transfer books for such purpose for a period of not more than sixty (60) days
prior to the payment date of such dividend. In the absence of any
action by the Board of Directors, the date upon which the Board of Directors
adopts the resolution declaring such dividend will be the record
date.
Section 8.2
Reserves
. There
may be created by resolution of the Board of Directors out of the surplus of the
Corporation such reserve or reserves as the Directors from time to time, in
their discretion, deem proper to provide for contingencies, or to equalize
dividends, or to repair or maintain any property of the Corporation, or for such
other purpose as the Directors may deem beneficial to the Corporation, and the
Directors may modify or abolish any such reserve in the manner in which it was
created. Surplus of the Corporation to the extent so reserved will not be
available for the payment of dividends or other distributions by the
Corporation.
Section 8.3
Telephone
and Similar Meetings
. Stockholders, Directors and committee
members may participate in and hold meetings by means of conference telephone or
similar communications equipment by which all persons participating in the
meeting can hear each other. Participation in such a meeting will
constitute presence in person at the meeting, except where a person participates
in the meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting had
not been lawfully called or convened.
Section 8.4
Books and
Records
. The Corporation will keep correct and complete books
and records of account and minutes of the proceedings of its stockholders and
Board of Directors, and will keep at its registered office or principal place of
business, or at the office of its transfer agent or registrar, a record of its
stockholders, giving the names and addresses of all stockholders and the number
and class of the shares held by each.
Section 8.5
Fiscal
Year
. The fiscal year of the Corporation will be fixed by resolution of
the Board of Directors.
Section 8.6
Seal
. The Corporation may
have a seal, and such seal may be used by causing it or a facsimile thereof to
be impressed or affixed or reproduced or otherwise. Any officer of
the Corporation will have authority to affix the seal to any document requiring
it.
Section 8.7
Resignation
. Any
Director, officer or agent may resign by giving written notice to the President
or the Secretary. Such resignation will take effect at the time
specified therein or immediately if no time is specified
therein. Unless otherwise specified therein, the acceptance of such
resignation will not be necessary to make it effective.
Section 8.8
Amendment
of Bylaws
. These Bylaws may be altered, amended or repealed at
any meeting of the Board of Directors at which a quorum is present, by the
affirmative vote of a majority of the Directors present at such
meeting.
Section 8.9
Invalid
Provisions
. If any part of these Bylaws is held invalid or
inoperative for any reason, the remaining parts, so far as possible and
reasonable, will be valid and operative.
Section 8.10
Relation
to Articles of Incorporation
. These Bylaws are subject to, and
governed by, the Articles of Incorporation.
Amended
and Restated November 25, 2009.