THIRD
AMENDED AND RESTATED BYLAWS
OF
APRICUS BIOSCIENCES, INC.
ARTICLE
I
OFFICES
Section 1.1
.
Principal Office
. The
principal office and place of business of Apricus Biosciences, Inc. (the “
Corporation
”) shall
be at 6330 Nancy Ridge Drive, Suite 103, San Diego, California 92121, unless
changed by the board of directors of the Corporation (the “
Board of
Directors
”).
Section 1.2
.
Other Offices
. Other
offices and places of business either within or without the State of Nevada may
be established from time to time by resolution of the Board of Directors or as
the business of the Corporation may require. The street address of the
Corporation’s resident agent is the registered office of the Corporation in
Nevada.
ARTICLE
II
STOCKHOLDERS
Section 2.1
.
Annual Meetings of
Stockholders
. The annual meeting of the stockholders of the Corporation
shall be held at such place within or without the State of Nevada as shall be
set forth in compliance with these Second Amended and Restated Bylaws (the
“
Bylaws
”). Such
annual meeting shall be held on such date and at such time as the Board of
Directors shall each year fix.
Section 2.2
.
Special Meetings of
Stockholders
. Special meetings of stockholders may be called only by the
Chairman of the Board or the President, or by the Board of Directors acting
pursuant to a resolution adopted by a majority of the total number of authorized
directors, whether or not there exist any vacancies in previously authorized
directorships, in each case in accordance with the provisions of the Articles of
Incorporation of the Corporation, as amended from time to time (the “
Articles of
Incorporation
”).
Section 2.3
.
Notice of Meetings of
Stockholders; Waiver of Notice
. The Secretary shall given written notice
stating the place, date and hour of the meeting, and in the case of a special
meeting, the purpose or purposes for which such special meeting is called. Such
notice shall be delivered not less than ten (10) nor more than sixty (60) days
before the day of the meeting, either personally or by mail, to each
stockholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail, with postage thereon prepaid, addressed to each stockholder of
record entitled to vote at such meeting at the address as it appears on the
books of the Corporation. Upon mailing, service of the notice is complete, and
the time of the notice begins to run from the date upon which the notice is
deposited in the mail. Any stockholder may waive notice of any meeting by a
signed writing or by transmission of an electronic record, either before or
after the meeting. Such waiver of notice shall be deemed the equivalent of the
giving of such notice.
Section
2.4
.
Place of
Meetings of Stockholders
.
The Board of Directors may designate any place, either within or without the
State of Nevada, as the place of meeting for any annual meeting or for any
special meeting called by the Board of Directors. A waiver of notice signed by
all stockholders entitled to vote at a meeting may designate the place, either
within or without the State of Nevada, as the place for the holding of such
meeting. If no place for a meeting is designated, the place of meeting shall be
the principal office of the Corporation.
Section 2.5
.
Record Date
. The
Board of Directors may fix a date not less than ten (10) nor more than sixty
(60) days prior to any meeting as the record date for the purpose of determining
stockholders entitled to notice of and to vote at such meetings of the
stockholders. The stock transfer books of the Corporation may be closed by the
Board of Directors for a stated period not to exceed sixty (60) days for the
purpose of determining stockholders entitled to receive payment of any dividend,
or in order to make a determination of stockholders for any other
purpose.
Section 2.6
.
Quorum
. A majority of
the outstanding shares of the Corporation entitled to vote, represented in
person or by proxy, shall constitute a quorum at a meeting of stockholders. If
less than a majority of the outstanding shares are represented at a meeting, a
majority of the shares so represented may adjourn the meeting from time to time
without further notice. At a meeting resumed after any such adjournment at which
a quorum shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally noticed. Once a quorum
is established, stockholders present at a duly organized meeting may
continue to transact business until adjournment, even if
stockholders withdraw their shares in such number that less than a quorum
remain.
Section 2.7
.
Voting
. The holder of
an outstanding share of the Corporation entitled to vote may vote at a meeting
in person or by proxy. Except as may otherwise be provided in the Articles of
Incorporation, every stockholder shall be entitled to one (1) vote for each such
share standing in such stockholder’s name on the books of the Corporation.
Except as herein or in the Articles of Incorporation otherwise provided, all
corporate action shall be determined by a majority of the votes cast at a
meeting of stockholders by the holders of shares entitled to vote thereupon,
provided, that Directors of the Corporation shall be elected at the annual
meeting of stockholders by a plurality of the votes cast at the
election.
Section 2.8
.
Proxies
. At any
meeting of the 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. No proxy is valid after the
expiration of six (6) months from the date of its creation, unless it is coupled
with an interest or unless otherwise specified in the proxy. In no event shall
the term of a proxy exceed seven (7) years from the date of its creation. 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.
Section 2.9
.
Informal Action by
Stockholders
. Any action required to be taken at a meeting of the
stockholders, or any action which may be taken at a meeting of the stockholders,
may be taken without a meeting if a consent in writing, setting forth the action
so taken, shall be signed by a majority of the stockholders entitled to vote
with respect to the subject matter thereof, except that if a different
proportion of the voting power is required for such an action at a meeting, then
such different proportion shall be required.
Section 2.10
.
Director Nominations;
Stockholder Proposals
.
(a)
Annual
Meetings of the Stockholders
.
(1)
Director
Nominations
. Nominations
of persons to be considered for election to the Board of Directors at an annual
meeting of the stockholders (an “
Annual
Meeting
”) may only be made
(i) by or at the direction of the Board of Directors, or (ii) by a stockholder
pursuant to this Section 2.10(a)(1). A stockholder may nominate a person to be
considered for election to the Board of Directors at an Annual Meeting only if
such nomination is made in compliance with the policies and procedures set forth
in the Charter of the Corporate Governance/Nominating Committee of the Board of
Directors, in effect and as the same may be Second Amended from time to time
(the “
Nominating
Committee Charter
”).
(2)
Proposals
Included in Proxy Statement
. Proposals of business to be
considered at an Annual Meeting and included in the Corporation’s proxy
statement for such Annual Meeting (the “
Proxy
Statement
”) may be made
(i) by or at the direction of the Board of Directors, or (ii) by a stockholder
pursuant to this Section 2.10(a)(2). A stockholder may propose business to be
considered at an Annual Meeting and included in the Proxy Statement only if such
proposal is made in compliance with the policies and procedures set forth in the
Nominating Committee Charter.
(3)
Proposals
Not Included in Proxy Statement
. Proposals of business to be
considered at an Annual Meeting, but not included in the Proxy Statement, except
for nominations of persons to be considered for election to the Board of
Directors, may be made (i) by or at the direction of the Board of Directors, or
(ii) by a stockholder pursuant to this Section 2.10(a)(3). A stockholder may
propose business to be considered at an Annual Meeting, but not included the
Proxy Statement, provided that such stockholder (i) is a stockholder of record
at the time such stockholder gives the notice required by this Section
2.10(a)(3), (ii) is entitled to vote at the Annual Meeting, and (iii) makes such
proposal in compliance with the procedures set forth in this Section 2.10(a)(3).
For such business to be properly proposed for consideration at an Annual Meeting
pursuant to this Section 2.10(a)(3), the stockholder making such proposal must
have given timely notice thereof in writing to the Secretary of the Corporation.
To be timely, such stockholder’s notice must be delivered to the Secretary at
the principal executive offices of the Corporation not less than sixty (60) days
nor more than ninety (90) days prior to the first anniversary of the preceding
year’s Annual Meeting; provided, however, that in the event that the date of the
pending Annual Meeting is advanced by more than thirty (30) days or delayed by
more than sixty (60) days from such anniversary date, to be timely, such notice
by the stockholder must be delivered not earlier than the ninetieth (90th) day
prior to such pending Annual Meeting and not later than the close of business on
the later of the sixtieth (60th) day prior to such pending Annual Meeting or the
tenth (10th) day following the day on which public announcement of the date of
such meeting is first made. Such stockholder’s notice shall set forth (i) a
brief description of the business proposed to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and of the beneficial owner, if any, on whose
behalf the proposal is made; and (ii) as to the stockholder giving the notice
and the beneficial owner, if any, on whose behalf such proposal is made, (x) the
name and address of such stockholder, as they appear on the Corporation’s books,
and the name and address of such beneficial owner, and (y) the class and number
of shares of stock of the Corporation owned beneficially and of record by such
stockholder and such beneficial owner.
(b)
General
.
(1)
Only such persons who are nominated in
accordance with the procedures set forth in this Section 2.10 shall be eligible
to serve as Directors and only such business shall be conducted at an Annual
Meeting as shall have been brought before such Annual Meeting in accordance with
the procedures set forth in this Section 2.10. The presiding officer of the
Annual Meeting shall have the power and duty to determine whether any nomination
or any business proposed to be brought before the meeting was made in accordance
with the procedures set forth in this Section 2.10 and, if any proposed
nomination or business is not in compliance with this Section 2.10, to declare
that such defective nomination or proposal be disregarded.
(2)
Any stockholder taking any action
contemplated by this Section 2.10, notwithstanding any contrary provision
hereof, shall also comply with all applicable requirements of (i) applicable
state law and (ii) the Exchange Act and the rules and regulations
thereunder.
BOARD
OF DIRECTORS
Section 3.1
.
General Powers
. The
business and affairs of the Corporation shall be managed by or under the
direction of its Board of Directors. The Board of Directors shall have the power
to make, modify, amend, or repeal the Bylaws. The Board of Directors may, as it
deems proper, adopt rules, regulations and policies for the conduct of their
meetings and the management of the Corporation.
Section 3.2
.
Number, Tenure, and
Qualifications
. Unless a different number is required by the laws of the
State of Nevada or the Articles of Incorporation, or until changed in the manner
provided in the Articles of Incorporation, the Board of Directors shall consist
of at least three (3), but not more than twelve (12), individuals who shall be
elected at the annual meeting of stockholders as provided in the Articles of
Incorporation and these Bylaws.
Section 3.3
.
Regular Meetings
. A
regular meeting of the Board of Directors shall be held, with no additional
notice thereof required, immediately following and at the same place as the
annual meeting of stockholders. The Board of Directors may provide, by
resolution, the time and place for the holding of additional regular meetings
without notice other than such resolution.
Section 3.4
.
Special Meetings
.
Special meetings of the Board of Directors may be called by order of the
Chairman of the Board, the President, or by one-third (1/3) of the Board of
Directors. The Secretary shall give notice to each Director of the time, place,
and purpose or purposes of each special meeting by mailing the same at least two
(2) days before such meeting or by telephoning or telegraphing the same at least
one (1) day before such meeting.
Section 3.5
.
Quorum
. A majority of
the members of the Board of Directors shall constitute a quorum for the
transaction of business,
provided
, that less
than a quorum may adjourn any meeting from time to time until a quorum shall be
present, whereupon the meeting may be held, and adjourned, without further
notice.
Section 3.6
.
Manner of Acting
. At
all meetings of the Board of Directors, each Director shall have one (1) vote.
If a quorum is present at any such meeting, then the act of a majority of the
Directors present at such meeting shall be the act of the Board of Directors.
Any business may be transacted at a meeting at which every Director is present,
even though such meeting was held without any notice. The Board of Directors may
conduct a meeting by means of a conference telephone or any similar
communications equipment by which all persons participating in the meeting can
hear one another, and such participation shall constitute presence at a
meeting.
Section 3.7
.
Informal Action by
Directors
. Any action required or permitted to be taken at a meeting of
the Board of Directors may be taken without a meeting if a consent in writing,
setting forth the action so taken, shall be signed by all of the Directors
entitled to vote with respect to the subject matter thereof.
Section 3.8
.
Vacancies
. Vacancies
in the Board of Directors shall be filled in accordance with the Articles of
Incorporation.
Section 3.9
.
Removals
. Any
director may be removed from the Board of Directors by the vote or written
consent of stockholders representing not less than two-thirds of the voting
power of the issued and outstanding shares entitled to vote.
Section 3.11
.
Presumption of
Assent
. A Director of the Corporation who is present at a meeting of the
Board of Directors at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless his or her dissent shall be
entered in the minutes of the meeting or unless he or she shall file his or her
written dissent to such action with the person acting as the Secretary of the
meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a Director
who voted in favor of such action.
Section 3.12
.
Compensation
. By
resolution of the Board of Directors, the Directors may be reimbursed their
expenses, if any, incurred in connection with attendance at each meeting of the
Board of Directors, and may be paid either (i) a fixed sum for attendance in
addition to such reimbursed amount at each meeting of the Board of Directors or
(ii) a stated salary as Director. No payment shall preclude any Director from
serving the Corporation in any other capacity and receiving compensation
therefor.
Section 3.13
.
Emergency Power
.
When, due to a national disaster or death, a majority of the Board Directors is
incapacitated or otherwise unable to attend meetings and function as Directors,
the remaining members of the Board of Directors shall have all the powers
necessary to function as a complete Board of Directors and, for the purpose of
doing business and filling vacancies, shall constitute a quorum until such time
as a true quorum of Directors can attend a meeting or until vacancies can be
filled pursuant to these Bylaws.
Section 3.14
.
Chairman
. The Board
of Directors may elect from its own number a Chairman of the Board, who shall
preside at all meetings of the Board of Directors, and who shall perform such
other duties as may be prescribed from time to time by the Board of Directors.
ARTICLE
IV
OFFICERS
Section 4.1
.
Number
. The officers
of the Corporation shall be a President, one (1) or more Vice Presidents, a
Secretary, and a Treasurer, each of whom shall be elected by a majority of the
Board of Directors. The Board of Directors may elect or appoint such other
officers and assistant officers as it may deem necessary or appropriate. In its
discretion, the Board of Directors may leave unfilled any office (except for the
offices of President, Secretary and Treasurer) for any period as it may
determine. Officers need not be Directors or stockholders of the
Corporation.
Section 4.2
.
Election and Term of
Office
. The officers of the Corporation are to be elected by the Board of
Directors at the first meeting of the Board of Directors held after each annual
meeting of the stockholders. If the election officers shall not be held at such
meeting, such election shall be held as soon thereafter as convenient. Each
officer shall hold office until his or her successor shall have been duly
elected and shall have qualified or until his death or until he or she shall
resign or shall have been removed in the manner hereinafter
provided.
Section 4.3
.
Resignations
. Any
officer may resign at any time by delivering a written resignation either to the
President or to the Secretary. Unless other specified therein, such resignation
shall take effect upon such delivery.
Section 4.4
.
Removal
. Any officer
or agent of the Corporation may be removed by the Board of Directors whenever,
in its judgment, the best interests of the Corporation will be served thereby,
but such removal shall be without prejudice to the contract rights, if any, of
the person so removed. Election or appointment of an officer or agent shall not
by itself create any contract rights for such officer or agent. Any such removal
shall require a majority vote of the Board of Directors, exclusive of such
officer or agent being removed if such person is also a Director.
Section 4.5
.
Vacancies
. A vacancy
in any office because of death, resignation, removal, disqualification or
otherwise, or if a new office shall be created, may be filled by the Board of
Directors for the unexpired portion of the term.
Section 4.6
.
President
. The
President shall be the chief executive and administrative officer of the
Corporation. The President shall preside at all meetings of the stockholders
and, in the absence of the Chairman of the Board, at meetings of the Board of
Directors. The President shall exercise such duties as customarily pertain to
the office of President and shall have general and active supervision over the
property, business, and affairs of the Corporation and over its several
officers. The President may appoint officers, agents, or employees other than
those appointed by the Board of Directors. The President may sign, execute and
deliver in the name of the Corporation powers of attorney, contracts, bonds, and
other obligations and shall perform such other duties as may be prescribed from
time to time by the Board of Directors or by these Bylaws.
Section 4.8
.
Secretary
. The
Secretary shall keep the minutes of all meetings of the stockholders and of the
Board of Directors and to the extent ordered by the Board of Directors or the
President, the minutes of meetings of all committees. The Secretary shall cause
notice to be given of meetings of stockholders, of the Board of Directors, and
of any committee appointed by the Board. The Secretary shall have custody of the
corporate seal and general charge of the records, documents, and papers of the
Corporation not pertaining to the performance of the duties vested in other
officers, which shall at all reasonable times be open to the examination of any
Director. The Secretary may sign or execute contracts with the President or a
Vice President thereunto authorized in the name of the Company and affix the
seal of the Corporation thereto. The Secretary shall perform such other duties
as may be prescribed from time to time by the Board of Directors or by these
Bylaws. The Secretary shall be sworn to the faithful discharge of his or her
duties. Assistant Secretaries shall assist the Secretary and shall keep and
record such minutes of meetings as shall be directed by the Board of
Directors.
Section 4.10
.
General Manager
. The
Board of Directors may employ and appoint a General Manager who need not be an
officer of the Corporation or a Director. If employed by the Board of Directors,
the General Manager shall be the chief operating officer of the Corporation and,
subject to the directions of the Board of Directors, shall have general charge
of the business operations of the Corporation and general supervision over its
employees and agents. The General Manager shall have the exclusive management of
the business of the Corporation and of all of its dealings, but at all times
subject to the control of the Board of Directors. Subject to the approval of the
Board of Directors or the executive committee, the General Manager shall recruit
all employees of the Corporation, or delegate such recruitment to subordinate
officers, or such division officers, or such division chiefs, and shall have
authority to discharge any person so employed. The General Manager shall make a
quarterly report to the President and Board of Directors, or more often if
required by the President or the Board of Directors to do so, setting forth the
results of the operations under his or her charge, together with suggestions
looking to the improvement and betterment of the condition of the Corporation,
and to perform such other duties as the Board of Directors shall
require.
Section 4.11
.
Other Officers
. Other
officers shall perform such duties and have such powers as may be assigned to
them by the Board of Directors.
Section 4.12
.
Salaries
. The
salaries or other compensation of the officers of the Corporation shall be fixed
from time to time by the Board of Directors except that the Board of Directors
may delegate to any person or group of persons the power to fix the salaries or
other compensation of any subordinate officers of agents. No officer shall be
prevented from receiving any such salary or compensation by reason of the fact
that such officer is also a Director.
Section 4.13
.
Surety Bonds
. In case
the Board of Directors shall so require, any officer or agent of the Corporation
shall execute to the Corporation a bond in such sums and with surety or sureties
as the Board of Directors may direct, conditioned upon the faithful performance
of his or her duties to the Corporation, including responsibility for negligence
and for the accounting for all property, monies or securities of the Corporation
which may come into his or her possession or under his or her
control.
ARTICLE
V
COMMITTEES
Section 5.1
.
Executive Committee
.
The Board of Directors may appoint from among its members an Executive Committee
of not less than two (2), but not more than seven (7), members, one (1) of whom
shall be the President. The Board of Directors shall designate one (1) or more
Directors to serve as alternate member or members of such Executive Committee.
The Board of Directors reserves to itself alone the power to declare dividends,
issue stock, recommend to stockholders any action requiring the approval of
stockholders, change the membership of any committee at any time, fill vacancies
therein, and discharge any committee either with or without cause at any time.
Subject to the foregoing limitations, the Executive Committee shall possess and
exercise all other powers of the Board of Directors during the intervals between
meetings of the Board of Directors.
Section 5.2
.
Other Committees
. The
Board of Directors may also appoint from among its own members such other
committees as the Board may determine, which shall in each case consist of not
less than two (2) Directors, and which shall have such powers and duties as
shall from time to time be prescribed by the Board. The President shall be a
member
ex officio
of
each committee appointed by the Board of Directors. A majority of the members of
any committee may fix its rules of procedure.
ARTICLE
VI
CONTRACTS,
LOANS, CHECKS AND DEPOSITS
Section 6.1
.
Contracts
. The Board
of Directors may authorize any officer(s) or agent(s) to enter into any contract
or execute and deliver any instrument in the name of and on behalf of the
Corporation, and such authority may be general or confined to specific
instances.
Section 6.2
.
Loans
. No loan or
advances shall be contracted on behalf of the Corporation, no negotiable paper
or other evidence of its obligation under any loan or advance shall be issued in
its name, and no property of the Corporation shall be mortgaged, pledged,
hypothecated or transferred as security for the payment of any loan, advance,
indebtedness or liability of the Corporation unless and except as authorized by
the Board of Directors. Any such authorization may be general or confined to
specific instances.
Section 6.3
.
Deposits
. All funds
of the Corporation not otherwise employed shall be deposited from time to time
to the credit of the Corporation in such banks, trust companies or other
depositories as the Board of Directors may select, or as may be selected by any
officer or agent authorized by the Board of Directors to do so.
Section 6.4
.
Checks and Drafts
.
All notes, drafts, acceptances, checks, endorsements and evidence of
indebtedness of the Corporation shall be signed by such officer or officers or
such agent or agents of the Corporation and in such manner as the Board of
Directors from time to time may determine. Endorsements for deposit to the
credit of the Corporation in any of its duly authorized depositories shall be
made in such manner as the Board of Directors may from time to time
determine.
Section 6.5
.
Bonds and Debentures
.
Every bond or debenture issued by the Corporation shall be evidenced by an
appropriate instrument which shall be signed by the President or a Vice
President and by the Treasurer or by the Secretary, and sealed with the seal of
the Corporation. The seal may be facsimile, engraved or printed. Where such bond
or debenture is authenticated with the manual signature of an authorized officer
of the Corporation or other Trustee designated by the indenture of trust or
other agreement under which such security is issued, the signature of any of the
Corporation’s officers named thereon may be facsimile. In case any officer who
signed, or whose facsimile signature has been used on any such bond or
debenture, shall cease to be an officer of the Corporation for any reason before
the same has been delivered by the Corporation, such bond or debenture may
nevertheless be adopted by the Corporation and issued and delivered as though
the person who signed it or whose facsimile signature has been used thereon had
not ceased to be such officer.
ARTICLE
VII
CAPITAL
STOCK
Section 7.1
.
Issuance of Shares
.
The shares of the Corporation may be represented by certificates or
uncertificated. If certificated, each certificate shall be signed by the
President or the Vice President, and by the Secretary or an Assistant Secretary.
The signatures of the 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. All certificates
shall be numbered and may be sealed with the seal of the Corporation or a
facsimile thereof. With respect to all shares issued by the Corporation, whether
certificated or uncertificated, the name and address of the person to whom the
shares are issued, the number of shares issued, the date of issue and any other
information required by a direct registration system facility shall be entered
on the stock transfer books of the Corporation and in any other manner as
required by a direct registration system facility.
Section 7.2
.
Transfer of Shares
.
Transfer of shares of the Corporation shall be made only on the stock transfer
books of the Corporation by the stockholder of record thereof or by such
stockholder’s legal representative, who shall furnish proper evidence of
authority to transfer, or by such stockholder’s attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary of the Corporation,
and on surrender for cancellation of the certificate for such shares. The person
in whose name shares stand on the books of the Corporation shall be deemed by
the Corporation to be the owner thereof for all purposes.
Section 7.3
.
Transfer Agent and
Registrar
. The Board of Directors shall have power to appoint one or more
transfer agents and registrars for the transfer and registration of certificates
of stock of any class, and may require that stock certificates shall be
countersigned and registered by one or more of such transfer agents and
registrars.
Section 7.5
.
Consideration for
Shares
. The capital stock of the Corporation shall be issued for such
consideration, but not less than the par value thereof, as shall be fixed from
time to time by the Board of Directors. In the absence of fraud, the
determination of the Board of Directors as to the value of any property or
services received in full or partial payment of shares shall be
conclusive.
Section 7.6
.
Registered
Stockholders
. The Corporation shall be entitled to treat the stockholder
of record of any share or shares of stock as the holder in fact of such shares,
with any and all the rights and powers incident to the ownership of such stock
at any such meeting, including, without limitation, the power and authority to
execute and deliver proxies and consents on behalf of the Corporation in
connection with the exercise by the Corporation of the rights and powers
incident to the ownership of such stock, and the Corporation shall not be bound
or obligated to recognize any equitable or other claim by any other any other
person or entity with respect to such shares.
Section 7.7
.
Direct Registration System
Eligibility
. Notwithstanding anything to the contrary in this Article
VII, or in these Bylaws generally, shares of the Corporation shall be entered on
the books of the Corporation with all information necessary to comply with the
direct registration system requirements established by any stock exchange on
which the Corporation’s shares are listed. The terms “
books of the
Corporation
” or “
stock transfer books of the
Corporation
”, as used in these Bylaws, shall mean the books and records
of the Corporation as maintained by the Corporation, and shall not mean the
books or records of any third party, including, without limitation, any transfer
agent, broker-agent or any entity that serves as the Corporation’s direct
registration system facility.
ARTICLE
VIII
INDEMNIFICATION
Section 8.1
.
Indemnification
. No
officer or director shall be personally liable for any obligations arising out
of any acts or conduct of such officer or director performed for or on behalf of
the Corporation. The Corporation shall and does hereby indemnify and hold
harmless
each person and such person’s heirs and
administrators who shall serve at any time hereafter as a director or officer of
the Corporation from and against any and all claims, judgments and liabilities
to which such persons shall become subject by reason of his or her having
heretofore or hereafter been a director or officer of the Corporation, or by
reason of any action alleged to have been heretofore or hereafter taken or
omitted to have been taken by him as such director or officer, and shall
reimburse each such person for all legal and other expenses reasonably incurred
by him in connection with any such claim or liability; including power to defend
such person from all suits as provided for under the provisions of the Nevada
Revised Statutes;
provided
,
however
, that no such
person shall be indemnified against, or be reimbursed for, any expense incurred
in connection with any claim or liability arising out of his or her own
negligence or willful misconduct. The rights accruing to any person under the
foregoing provisions of this Section 8.1 shall not exclude any other right to
which such person may lawfully be entitled, nor shall anything herein contained
restrict the right of the Corporation to indemnify or reimburse such person in
any proper case, even though not specifically herein provided. The Corporation,
its Directors, officers, employees and agents shall be fully indemnified by the
Corporation in taking any action or making any payment, or in refusing so to do,
in reasonable reliance upon the advice of counsel.
Section 8.2
.
Other
Indemnification
. The indemnification herein provided shall not be deemed
exclusive of any other rights to which the person seeking indemnification may be
entitled under any statute, Bylaw, agreement, vote of stockholders or
disinterested Directors, or otherwise, both as to action in such person’s
official capacity and as to action in another capacity while holding such
office, and shall continue as to each person who has ceased to be a director,
officer or employee and shall inure to the benefit of such person’s heirs,
executors and administrators.
Section 8.3
.
Insurance
. The
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer or employee of the Corporation, or is or was serving
at the request of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against such and incurred by
such person in any capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify such person
against liability under the provisions of this Article VIII or Section 78.751 of
the Nevada Revised Statutes.
Section 8.4
.
Settlement by
Corporation
. The right of any person to be indemnified by the Corporation
shall be subject always to the right of the Corporation by its Board of
Directors, in lieu of such indemnity, to settle any such claim, action, suit or
proceeding at the expense of the Corporation by the payment of the amount of
such settlement and the costs and expenses incurred by such person in connection
therewith.
ARTICLE
IX
WAIVER
OF NOTICE
Whenever
any notice is required to be given to any stockholder or director of the
Corporation under the provisions of these Bylaws or under the provisions of the
Nevada Revised Statues, a waiver thereof in writing signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice. Attendance at
any meeting shall constitute a waiver of notice of such meetings, except where
attendance is for the express purpose of objecting to the legality of that
meeting.
AMENDMENTS
Amendment
of these Bylaws of the Corporation shall be in accordance with the Articles of
Incorporation.
ARTICLE
XI
FISCAL
YEAR
The
fiscal year of the Corporation shall be fixed and may be varied by resolution of
the Board of Directors.
ARTICLE
XII
DIVIDENDS
The Board
of Directors may, at any regular or special meeting, declare dividends payable
out of the surplus of the Corporation in accordance with the Nevada Revised
Statutes.
ARTICLE
XIII
CORPORATE
SEAL
The seal
of the Corporation shall be in the form of a circle and shall bear the name of
the Corporation and the year of its incorporation.
ARTICLE
XIV
RIGHTS
AND POWERS
The
Corporation, the Board of Directors, the officers of the Corporation and its
stockholders shall have the rights and powers provided for by applicable law,
whether or not specifically provided for in these Bylaws.
ARTICLE
XV
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 (i) 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 VIII hereof, the rights to limited
liability, to indemnification and to the advancement of expenses provided in the
Articles of Incorporation and/or these Bylaws shall continue as theretofore to
the extent permitted by law, and (ii) if such change permits the Corporation,
without the requirement of any further action by the 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.
