BY-LAWS OF CREXENDO, INC.
OFFICES
Section 1.01
Offices.
The address of the registered office
of Crexendo, Inc. (hereinafter called the "
Corporation
") in the State of Nevada shall be at 1615 S.
52
nd
Street. The Corporation may have other
offices, both within and without the State of Nevada, as the board
of directors of the Corporation (the "
Board of
Directors
") from time to time
shall determine or the business of the Corporation may
require.
Section 1.02
Books
and Records.
Any records
maintained by the Corporation in the regular course of its
business, including its stock ledger, books of account and minute
books, may be maintained on any information storage device or
method;
provided that
the records so kept can be converted
into clearly legible paper form within a reasonable time. The
Corporation shall so convert any records so kept upon the request
of any person entitled to inspect such records pursuant to
applicable law.
ARTICLE II
MEETINGS
OF THE SHAREHOLDERS
Section 2.01
Place
of Meetings.
All meetings of
the shareholders shall be held at such place, if any, either within
or without the State of Nevada, as shall be designated from time to
time by resolution of the Board of Directors and stated in the
notice of meeting.
Section 2.02
Annual
Meeting.
A meeting of the
shareholders for the election of directors and for the transaction
of such other business as may properly come before the meeting
shall be held at such date, time and place, if any, as shall be
determined by the Board of Directors and stated in the notice of
the meeting.
Section 2.03
Special
Meetings.
Special meetings of
shareholders for any purpose or purposes shall be called pursuant
to a resolution approved by the Chairman of the Board of Directors,
the Chief Executive Officer , affirmative vote of the Board of
Directors, or upon a written request of any stockholder of
shareholders holding in the aggregate one- tenth of the voting
power of all shareholders delivered in person or sent by registered
mail to the Chairman of the Board, the Chief Operation Officer, the
Chief Financial Officer or Chief Legal Officer and may not be
called by any other person or persons. The only business which may
be conducted at a special meeting shall be the matter or matters
set forth in the notice of such meeting. Such meeting must be
called within sixty (60) days of the verified
request.
Section 2.04
Adjournments.
Any meeting of the shareholders,
annual or special, may be adjourned from time to time to reconvene
at the same or some other place, if any, and notice need not be
given of any such adjourned meeting if the time, place, if any,
thereof and the means of remote communication, if any, are
announced at the meeting at which the adjournment is taken. At the
adjourned meeting, the Corporation may transact any business which
might have been transacted at the original meeting. If the
adjournment is for more than 30 days, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to
vote at the meeting. If after the adjournment a new record date is
fixed for shareholders entitled to vote at the adjourned meeting,
the Board of Directors shall fix a new record date for notice of
the adjourned meeting and shall give notice of the adjourned
meeting to each stockholder of record entitled to vote at the
adjourned meeting as of the record date fixed for notice of the
adjourned meeting.
Section 2.05
Notice
of Meetings.
Notice of the
place, if any, date, hour, the record date for determining the
shareholders entitled to vote at the meeting (if such date is
different from the record date for shareholders entitled to notice
of the meeting) and means of remote communication, if any, of every
meeting of shareholders shall be given by the Corporation not less
than ten days nor more than 60 days before the meeting (unless a
different time is specified by law) to every stockholder entitled
to vote at the meeting as of the record date for determining the
shareholders entitled to notice of the meeting. Notices of special
meetings shall also specify the purpose or purposes for which the
meeting has been called. Except as otherwise provided herein or
permitted by applicable law, notice to shareholders shall be in
writing and delivered personally or mailed to the shareholders at
their address appearing on the books of the Corporation. Without
limiting the manner by which notice otherwise may be given
effectively to shareholders, notice of meetings may be given to
shareholders by means of electronic transmission in accordance with
applicable law. Notice of any meeting need not be given to any
stockholder who shall, either before or after the meeting, submit a
waiver of notice or who shall attend such meeting, except when the
stockholder attends for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Any
stockholder so waiving notice of the meeting shall be bound by the
proceedings of the meeting in all respects as if due notice thereof
had been given.
Section 2.06
List
of Shareholders.
The officer of
the Corporation who has charge of the stock ledger shall prepare a
complete list of the shareholders entitled to vote at any meeting
of shareholders (provided, however, if the record date for
determining the shareholders entitled to vote is less than ten days
before the date of the meeting, the list shall reflect the
shareholders entitled to vote as of the tenth day before the
meeting date), showing the address of each stockholder and the
number of shares of each class of capital stock of the Corporation
registered in the name of each stockholder at least ten days before
any meeting of the shareholders. Such list shall be open to the
examination of any stockholder, for any purpose germane to the
meeting, on a reasonably accessible electronic network if the
information required to gain access to such list was provided with
the notice of the meeting or during ordinary business hours, at the
principal place of business of the Corporation for a period of at
least ten days before the meeting. If the meeting is to be held at
a place, the list shall also be produced and kept at the time and
place of the meeting the whole time thereof and may be inspected by
any stockholder who is present. If the meeting is held solely by
means of remote communication, the list shall also be open for
inspection by any stockholder during the whole time of the meeting
as provided by applicable law. Except as provided by applicable
law, the stock ledger of the Corporation shall be the only evidence
as to who are the shareholders entitled to examine the stock ledger
and the list of shareholders or to vote in person or by proxy at
any meeting of shareholders.
Section 2.07
Quorum.
Unless otherwise required by law, the
Corporation's Certificate of Incorporation (the
"
Certificate
of Incorporation
") or these
by-laws, at each meeting of the shareholders, a majority in voting
power of the shares of the Corporation entitled to vote at the
meeting, present in person or represented by proxy, shall
constitute a quorum. If, however, such quorum shall not be present
or represented at any meeting of the shareholders, the shareholders
entitled to vote thereat, present in person or represented by
proxy, shall have power, by the affirmative vote of a majority in
voting power thereof, to adjourn the meeting from time to time, in
the manner provided in Section 2.04, until a quorum shall be
present or represented. A quorum, once established, shall not be
broken by the subsequent withdrawal of enough votes to leave less
than a quorum. At any such adjourned meeting at which there is a
quorum, any business may be transacted that might have been
transacted at the meeting originally called.
Section 2.08
Conduct
of Meetings.
The Board of
Directors subject to Nevada law may adopt by resolution such rules
and regulations for the conduct of the meeting of the shareholders
as it shall deem appropriate. At every meeting of the shareholders,
the Chief Executive Officer, or in his or her absence or inability
to act, an alternate Corporate Officer, shall act as chairman of,
and preside at, the meeting. The secretary or, in his or her
absence or inability to act, the person whom the chairman of the
meeting shall appoint secretary of the meeting, shall act as
secretary of the meeting and keep the minutes thereof. Except to
the extent inconsistent with such rules and regulations as adopted
by the Board of Directors, the chairman of any meeting of the
shareholders shall have the right and authority to prescribe such
rules, regulations and procedures and to do all such acts as, in
the judgment of such chairman, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures,
whether adopted by the Board of Directors or prescribed by the
chairman of the meeting, may include, without limitation, the
following: (a) the establishment of an agenda or order of business
for the meeting; (b) the determination of when the polls shall open
and close for any given matter to be voted on at the meeting; (c)
rules and procedures for maintaining order at the meeting and the
safety of those present; (d) limitations on attendance at or
participation in the meeting to shareholders of record of the
corporation, their duly authorized and constituted proxies or such
other persons as the chairman of the meeting shall determine; (e)
restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (f) limitations on the time allotted to
questions or comments by participants.
Section 2.09
Voting;
Proxies.
Unless otherwise
required by law or the Certificate of Incorporation the election of
directors shall be by decided by a plurality of the votes cast at a
meeting of the shareholders by the holders of stock entitled to
vote in the election. Unless otherwise required by law, the
Certificate of Incorporation or these by-laws, any matter, other
than the election of directors, brought before any meeting of
shareholders shall be decided by the affirmative vote of the
majority of shares present in person or represented by proxy at the
meeting and entitled to vote on the matter. Each stockholder
entitled to vote at a meeting of shareholders or to express consent
to corporate action in writing without a meeting may authorize
another person or persons to act for such stockholder by proxy, but
no such proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period. A proxy
shall be irrevocable if it states that it is irrevocable and if,
and only as long as, it is coupled with an interest sufficient in
law to support an irrevocable power. A stockholder may revoke any
proxy which is not irrevocable by attending the meeting and voting
in person or by delivering to the secretary of the Corporation a
revocation of the proxy or a new proxy bearing a later date. Voting
at meetings of shareholders need not be by written
ballot.
Section 2.10
Inspectors
at Meetings of Shareholders.
The Board of Directors, in advance of any meeting
of shareholders, may, and shall if required by law, appoint one or
more inspectors, who may be employees of the Corporation, to act at
the meeting or any adjournment thereof and make a written report
thereof. The Board of Directors may designate one or more persons
as alternate inspectors to replace any inspector who fails to act.
If no inspector or alternate is able to act at a meeting, the
person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering
upon the discharge of his or her duties, shall take and sign an
oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The
inspectors shall (a) ascertain the number of shares outstanding and
the voting power of each, (b) determine the shares represented at
the meeting, the existence of a quorum and the validity of proxies
and ballots, (c) count all votes and ballots, (d) determine and
retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors and (e)
certify their determination of the number of shares represented at
the meeting and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to
assist the inspectors in the performance of their duties. Unless
otherwise provided by the Board of Directors, the date and time of
the opening and the closing of the polls for each matter upon which
the shareholders will vote at a meeting shall be announced at the
meeting. No ballot, proxies, votes or any revocation thereof or
change thereto, shall be accepted by the inspectors after the
closing of the polls unless the Court of Chancery of the State of
Nevada upon application by a stockholder shall determine otherwise.
In determining the validity and counting of proxies and ballots
cast at any meeting of shareholders, the inspectors may consider
such information as is permitted by applicable law. No person who
is a candidate for office at an election may serve as an inspector
at such election.
Section 2.11
Written
Consent of Shareholders Without a Meeting.
Any action to be taken at any annual or special
meeting of shareholders may be taken without a meeting, without
prior notice and without a vote, if a consent or consents in
writing, setting forth the action to be so taken, shall be 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 shall be delivered (by hand or
by certified or registered mail, return receipt requested) to the
Corporation by delivery to its registered office in the State of
Nevada, its principal place of business or an officer or agent of
the Corporation having custody of the book in which proceedings of
meetings of shareholders are recorded. Every written consent shall
bear the date of signature of each stockholder who signs the
consent, and no written consent shall be effective to take the
corporate action referred to therein unless, within 60 days of the
earliest dated consent delivered in the manner required by this
Section 2.11, written consents signed by a sufficient number of
holders to take action are delivered to the Corporation as
aforesaid. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall, to
the extent required by applicable law, be given to those
shareholders who have not consented in writing, and who, if the
action had been taken at a meeting, would have been entitled to
notice of the meeting if the record date for notice of such meeting
had been the date that written consents signed by a sufficient
number of holders to take the action were delivered to the
Corporation.
Section 2.12
Fixing
the Record Date.
(a)
In
order that the Corporation may determine the shareholders entitled
to notice of or to vote at any meeting of shareholders or any
adjournment thereof, the Board of Directors may fix a record date,
which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than 60 nor less
than ten days before the date of such meeting. If the Board of
Directors so fixes a date, such date shall also be the record date
for determining the shareholders entitled to vote at such meeting
unless the Board of Directors determines, at the time it fixes such
record date, that a later date on or before the date of the meeting
shall be the date for making such determination. If no record date
is fixed by the Board of Directors, the record date for determining
shareholders entitled to notice of or to vote at a meeting of
shareholders 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. A determination of shareholders of
record entitled to notice of or to vote at a meeting of
shareholders shall apply to any adjournment of the meeting;
provided,
however,
that the Board of
Directors may fix a new record date for the determination of
shareholders entitled to vote at the adjourned meeting and in such
case shall also fix as the record date for shareholders entitled to
notice of such adjourned meeting the same or an earlier date as
that fixed for the determination of shareholders entitled to vote
therewith at the adjourned meeting.
(b)
In
order that the Corporation may determine the shareholders entitled
to consent to corporate action in writing without a meeting, the
Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record
date is adopted by the Board of Directors, and which record date
shall not be more than ten days after the date upon which the
resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of
Directors, the record date for determining shareholders entitled to
consent to corporate action in writing without a meeting: (i) when
no prior action by the Board of Directors is required by law, the
record date for such purpose shall be the first date on which a
signed written consent setting forth the action taken or proposed
to be taken is delivered to the Corporation by delivery (by hand,
or by certified or registered mail, return receipt requested) to
its registered office in the State of Nevada, its principal place
of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of
shareholders are recorded and (ii) if prior action by the Board of
Directors is required by law, the record date for such purpose
shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior
action.
(c)
In
order that the Corporation may determine the shareholders entitled
to receive payment of any dividend or other distribution or
allotment of any rights or the shareholders entitled to exercise
any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of
Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date
is adopted, and which record date shall be not more than 60 days
prior to such action. If no record date is fixed, the record date
for determining shareholders for any such purpose shall be at the
close of business on the day on which the Board of Directors adopts
the resolution relating thereto.
ARTICLE III
BOARD OF DIRECTORS
Section 3.01
General
Powers.
The business and
affairs of the Corporation shall be managed by or under the
direction of the Board of Directors. The Board of Directors may
adopt such rules and procedures, not inconsistent with the
Certificate of Incorporation, these by-laws or applicable law, as
it may deem proper for the conduct of its meetings and the
management of the Corporation.
Section 3.02
Number;
Term of Office.
The Board of
Directors shall consist of one or more members. Each director shall
hold office until a successor is duly elected and qualified or
until the director's earlier death, resignation, disqualification
or removal.
Section 3.03
Newly
Created Directorships and Vacancies.
Any newly created directorships resulting from an
increase in the authorized number of directors and any vacancies
occurring in the Board of Directors, maybe filled by the
affirmative votes of a majority of the remaining members of the
Board of Directors, although less than a quorum, or by a sole
remaining director. A director so elected shall be elected to hold
office until the earlier of the expiration of the term of office of
the director whom he or she has replaced, a successor is duly
elected and qualified or the earlier of such director's death,
resignation or removal.
Section 3.04
Resignation.
Any director may resign at any time by
notice given in writing or by electronic transmission to the
Corporation. Such resignation shall take effect at the date of
receipt of such notice by the Corporation or at such later time as
is therein specified.
Section 3.05
Fees
and Expenses.
Directors shall
receive such fees and expenses as the Board of Directors shall from
time to time prescribe.
Section 3.06
Regular
Meetings.
Regular meetings of
the Board of Directors may be held without notice at such times and
at such places as may be determined from time to time by the Board
of Directors or its chairman.
Section 3.07
Special
Meetings.
Special meetings of
the Board of Directors may be held at such times and at such places
as may be determined by the chairman, a majority of the Board of
Directors or other corporate officer or the on at least 24 hours'
notice to each director given by one of the means specified in
Section 3.11 hereof other than by mail or on at least three days'
notice if given by mail. Special meetings shall be called by the
chairman or appropriate Officer in like manner and on like notice
on the written request of any two or more
directors.
Section 3.08
Telephone
Meetings.
Board of Directors
committee meetings may be held by means of telephone conference or
other communications equipment by means of which all persons
participating in the meeting can hear each other and be heard.
Participation by a director in a meeting pursuant to this Section
shall constitute presence in person at such
meeting.
Section 3.09
Adjourned
Meetings.
A majority of the
directors present at any meeting of the Board of Directors,
including an adjourned meeting, whether or not a quorum is present,
may adjourn and reconvene such meeting to another time and place.
At least 24 hours' notice of any adjourned meeting of the Board of
Directors shall be given to each director whether or not present at
the time of the adjournment, if such notice shall be given by one
of the means specified herein other than by mail, or at least three
days' notice if by mail. Any business may be transacted at an
adjourned meeting that might have been transacted at the meeting as
originally called.
Section 3.10
Notices.
Subject to Section 3 hereof whenever
notice is required to be given to any director by applicable law,
the Certificate of Incorporation or these by-laws, such notice
shall be deemed given effectively if given in person or by
telephone, mail addressed to such director at such director's
address as it appears on the records of the Corporation, facsimile,
e-mail or by other means of electronic
transmission.
Section 3.11
Waiver
of Notice.
Whenever notice to
directors is required by applicable law, the Certificate of
Incorporation or these by-laws, a waiver thereof, in writing signed
by, or by electronic transmission by, the director entitled to the
notice, whether before or after such notice is required, shall be
deemed equivalent to notice. Attendance by a director at a meeting
shall constitute a waiver of notice of such meeting except when the
director attends a 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 was not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of, any
regular or special Board of Directors or committee meeting need be
specified in any waiver of notice.
Section 3.12
Organization.
At each meeting of the Board of
Directors, the chairman or, in his or her absence, another director
selected by the Board of Directors shall preside. The secretary
shall act as secretary at each meeting of the Board of Directors.
If the secretary is absent from any meeting of the Board of
Directors, an assistant secretary shall perform the duties of
secretary at such meeting; and in the absence from any such meeting
of the secretary and all assistant secretaries, the person
presiding at the meeting may appoint any person to act as secretary
of the meeting.
Section 3.13
Quorum
of Directors.
The presence of a
majority of the Board of Directors shall be necessary and
sufficient to constitute a quorum for the transaction of business
at any meeting of the Board of Directors.
Section 3.14
Action
by Majority Vote.
Except as
otherwise expressly required by these by-laws, the Certificate of
Incorporation or by applicable law, the vote of a majority of the
directors present at a meeting at which a quorum is present shall
be the act of the Board of Directors.
Section 3.15
Action
Without Meeting.
Unless
otherwise restricted by the Certificate of Incorporation or these
by-laws, any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may
be taken without a meeting if all directors or members of such
committee, as the case may be, consent thereto in writing or by
electronic transmission, and the writings or electronic
transmissions are filed with the minutes of proceedings of the
Board of Directors or committee in accordance with applicable
law.
Section 3.16
Committees
of the Board of Directors.
The
Board of Directors may 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.
If a member of a committee shall be absent from any meeting, or
disqualified from voting thereat, the remaining member or members
present at the meeting and not disqualified from voting, whether or
not such member or members 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. Any
such committee, to the extent permitted by applicable law, shall
have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the
Corporation and may authorize the seal of the Corporation to be
affixed to all papers that may require it to the extent so
authorized by the Board of Directors. Unless the Board of Directors
provides otherwise, at all meetings of such committee, a majority
of the then authorized members of the committee shall constitute a
quorum for the transaction of business, and the vote of a majority
of the members of the committee present at any meeting at which
there is a quorum shall be the act of the committee. Each committee
shall keep regular minutes of its meetings. Unless the Board of
Directors provides otherwise, each committee designated by the
Board of Directors may make, alter and repeal rules and procedures
for the conduct of its business. In the absence of such rules and
procedures each committee shall conduct its business in the same
manner as the Board of Directors conducts its business pursuant to
this Article III.
ARTICLE IV
OFFICERS
Section 4.01
Positions
and Election.
The officers of
the Corporation shall be elected by the Board of Directors and
shall remain until replace or resignation and shall include a
president, corporate officers as determined by the Board or
otherwise required by law and a secretary. The Board of Directors,
in its discretion, may also elect a chairman (who must be a
director), one or more vice chairmen (who must be directors) and
one or more vice presidents, assistant treasurers, assistant
secretaries and other officers. Any two or more offices may be held
by the same person.
Section 4.02
Term.
Each officer of the Corporation shall
hold office until such officer's successor is elected and qualified
or until such officer's earlier death, resignation or removal. Any
officer elected or appointed by the Board of Directors may be
removed by the Board of Directors at any time with or without cause
by the majority vote of the members of the Board of Directors then
in office. The removal of an officer shall be without prejudice to
his or her contract rights, if any. The election or appointment of
an officer shall not of itself create contract rights. Any officer
of the Corporation may resign at any time by giving written notice
of his or her resignation to the president or the secretary. Any
such resignation shall take effect at the time specified therein
or, if the time when it shall become effective shall not be
specified therein, immediately upon its receipt. Unless otherwise
specified therein, the acceptance of such resignation shall not be
necessary to make it effective. Should any vacancy occur among the
officers, the position shall be filled for the unexpired portion of
the term by appointment made by the Board of
Directors.
Section 4.03
The
President.
The president shall
have general supervision over the business of the Corporation and
other duties incident to the office of president, and any other
duties as may be from time to time assigned to the president by the
Board of Directors and subject to the control of the Board of
Directors in each case.
Section 4.04
Vice
Presidents.
Each vice president
shall have such powers and perform such duties as may be assigned
to him or her from time to time by the chairman of the Board of
Directors or the president. The Chief Executive Officer shall have
the authority to appoint Vice Presidents who shall not be deemed to
be Corporate Officers until and unless designated by the Board of
Directors.
Section 4.05
The
Secretary.
The secretary or
person designated to act as Secretary shall attend all sessions of
the Board of Directors and all meetings of the shareholders and
record all votes and the minutes of all proceedings in a book to be
kept for that purpose, and shall perform like duties for committees
when required. He or she shall give, or cause to be given, notice
of all meetings of the shareholders and meetings of the Board of
Directors, and shall perform such other duties as may be prescribed
by the Board of Directors or the president. The secretary shall
keep in safe custody the seal of the Corporation and have authority
to affix the seal to all documents requiring it and attest to the
same.
Section 4.06
The
Chief Financial Officer (“CFO”).
The CFO (or treasurer if so designated by the
Board and authorized by applicable law) shall have the custody of
the corporate funds and securities, except as otherwise provided by
the Board of Directors, and shall keep full and accurate accounts
of receipts and disbursements in books belonging to the Corporation
and shall deposit 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 CFO shall disburse the
funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall
render to the president and the directors, at the regular meetings
of the Board of Directors, or whenever they may require it, an
account of all his or her transactions as treasurer and of the
financial condition of the Corporation.
Section 4.07
Other Officers as may be
Designated.
The Board shall
have the authority to appoint Corporate Officers (including but not
limited to legal, technology operations) as they may designate from
time to time as determined to be in the best interest of the
Company.
Section 4.08
Duties
of Officers May Be Delegated.
In case any officer is absent, or for any other
reason that the Board of Directors may deem sufficient, the
president or the Board of Directors may delegate for the time being
the powers or duties of such officer to any other officer or to any
director.
ARTICLE V
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section
5.01
Right
of Indemnification
. Each
director or officer of the corporation, whether or not then in
office, and any person whose testator or intestate was such a
director or officer, shall be indemnified by the corporation for
the defense of, or in connection with, any threatened, pending or
completed actions or proceedings and appeals therein, whether
civil, criminal, administrative or investigative, in accordance
with and to the fullest extent permitted by the Business
Corporation Law of the State of Nevada or other applicable law, as
such law now exists or may hereafter be adopted or amended,
against, without limitation, all judgments, fines, amounts paid in
settlements, and all expenses, including attorneys' and other
experts' fees, costs and disbursements, actually and reasonably
incurred by such person as a result of such action or proceeding,
or actually and reasonably incurred by such person (a) in making an
application for payment of such expenses before any court or other
governmental body, (b) in otherwise seeking to enforce the
provisions of this Section 5.01, or (c) in securing or enforcing
such person's right under any policy or director or officer
liability insurance provided by the corporation; provided, however,
that the corporation shall provide indemnification in connection
with an action or proceeding (or part thereof) initiated by such a
director or officer only if such action or proceeding (or part
thereof) was authorized by the board of
directors.
Section 5.02
Advancement of
Expenses
. Expenses incurred by
a director or officer in connection with any action or proceeding
as to which indemnification may be given under Section 5.01 may be
paid by the corporation in advance of the final disposition of such
action or proceeding upon (a) the receipt of an undertaking by or
on behalf of such director or officer to repay such advancement in
case such director or officer is ultimately found not to be
entitled to indemnification as authorized by this Article V and (b)
approval by the board of directors acting by a quorum consisting of
directors who are not parties to such action or proceeding or, if
such a quorum is not obtainable, then approval by the shareholders.
To the extent permitted by law, the board of directors or, if
applicable, the shareholders, shall not be required to find that
the director or officer has met the applicable standard of conduct
provided by law for indemnification in connection with such action
or proceeding before the corporation makes any advance payment of
expenses hereunder.
Section 5.03
Availability and
Interpretation
. To the extent
permitted under applicable law, the rights of indemnification and
to the advancement of expenses provided in this Article V (a) shall
be available with respect to events occurring prior to the adoption
of this Article V, (b) shall continue to exist after any rescission
or restrictive amendment of this Article V with respect to events
occurring prior to such rescission or amendment, (c) shall be
interpreted on the basis of applicable law in effect at the time of
the occurrence of the event or events giving rise to the action or
proceeding or, at the sole discretion of the director or officer
or, if applicable, the testator or intestate of such director or
officer seeking such rights, on the basis of applicable law in
effect at the time such rights are claimed and (d) shall be in the
nature of contract rights that may be enforced in any court of
competent jurisdiction as if the corporation and the director or
officer for whom such rights are sought were parties to a separate
written agreement.
Section 5.04 Other Rights.
The
rights of indemnification and to the advancement of expenses
provided in this Article V shall not be deemed exclusive of any
other rights to which any director or officer of the corporation or
other person may now or hereafter be otherwise entitled whether
contained in the certificate of incorporation, these by-laws, a
resolution of the shareholders, a resolution of the board of
directors or an agreement providing for such indemnification, the
creation of such other rights being hereby expressly authorized.
Without limiting the generality of the foregoing, the rights of
indemnification and to the advancement of expenses provided in this
Article V shall not be deemed exclusive of any rights, pursuant to
statute or otherwise, of any director or officer of the corporation
or other person in any action or proceeding to have assessed or
allowed in his or her favor, against the corporation or otherwise,
his or her costs and expenses incurred therein or in connection
therewith or any part thereof.
Section 5.05
Severability.
If this Article V
or any part hereof shall be held unenforceable in any respect by a
court of competent jurisdiction, it shall be deemed modified to the
minimum extent necessary to make it enforceable, and the remainder
of this Article V shall remain fully
enforceable.
ARTICLE
VI
STOCK
CERTIFICATES AND THEIR TRANSFER
Section 6.01
Certificates
Representing Shares.
The shares
of stock of the Corporation shall be represented by certificates;
provided that the Board of Directors may provide by resolution or
resolutions that some or all of any class or series shall be
uncertificated shares that may be evidenced by a book-entry system
maintained by the registrar of such stock. If shares are
represented by certificates, such certificates shall be in the
form, other than bearer form, approved by the Board of Directors.
The certificates representing shares of stock of each class shall
be signed by, or in the name of, the Corporation by the chairman,
any vice chairman, the president or any vice president, and by the
secretary, any assistant secretary, the treasurer or any assistant
treasurer. Any or all such signatures may be facsimiles. Although
any officer, transfer agent or registrar whose manual or facsimile
signature is affixed to such a certificate ceases to be such
officer, transfer agent or registrar before such certificate has
been issued, it may nevertheless be issued by the Corporation with
the same effect as if such officer, transfer agent or registrar
were still such at the date of its issue.
Section 6.02
Transfers
of Stock.
Stock of the
Corporation shall be transferable in the manner prescribed by law
and in these by-laws. Transfers of stock shall be made on the books
of the Corporation only by the holder of record thereof, by such
person's attorney lawfully constituted in writing and, in the case
of certificated shares, upon the surrender of the certificate
thereof, which shall be cancelled before a new certificate or
uncertificated shares shall be issued. No transfer of stock shall
be valid as against the Corporation for any purpose until it shall
have been entered in the stock records of the Corporation by an
entry showing from and to whom transferred. To the extent
designated by the president or any vice president or the treasurer
of the Corporation, the Corporation may recognize the transfer of
fractional uncertificated shares, but shall not otherwise be
required to recognize the transfer of fractional
shares.
Section 6.03
Transfer
Agents and Registrars.
The
Board of Directors may appoint, or authorize any officer or
officers to appoint, one or more transfer agents and one or more
registrars.
Section 6.04
Lost,
Stolen or Destroyed Certificates.
The Board of Directors may direct a new
certificate or uncertificated shares to be issued in place of any
certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed upon the making of an affidavit of
that fact by the owner of the allegedly lost, stolen or destroyed
certificate or by other means as may be allowed by law. When
authorizing such issue of a new certificate or uncertificated
shares, the Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of
the lost, stolen or destroyed certificate, or the owner's legal
representative to give the Corporation a bond sufficient to
indemnify it against any claim that may be made against the
Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed or the issuance of such new certificate
or uncertificated shares.
ARTICLE VII
GENERAL
PROVISIONS
Section 7.01
Seal.
The seal of the Corporation shall be
in such form as shall be approved by the Board of Directors. The
seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise, as may be
prescribed by law or custom or by the Board of
Directors.
Section 7.02
Fiscal
Year.
The fiscal year of the
Corporation shall begin on January 1 and end on December 31 of each
year and may be changed from time to time as determined by the
Board of Directors.
Section 7.03
Checks,
Notes, Drafts, Etc.
All checks,
notes, drafts or other orders for the payment of money of the
Corporation shall be signed, endorsed or accepted in the name of
the Corporation by such officer, officers, person or persons as
from time to time may be designated by the Board of Directors or by
an officer or officers authorized by the Board of Directors to make
such designation.
Section 7.04
Dividends.
Subject to applicable law and the
Certificate of Incorporation, dividends upon the shares of capital
stock of the Corporation may be declared by the Board of Directors
at any regular or special meeting of the Board of Directors.
Dividends may be paid in cash, in property or in shares of the
Corporation's capital stock, unless otherwise provided by
applicable law or the Certificate of
Incorporation.
