DEFINITIVFE INFORMATION STATEMENT
Dear
Stockholder:
In
December 2016, we closed a transaction that made Wainwright
Holdings, Inc. a part of Concierge Technologies, Inc. The
transaction marked a significant step forward in the growth of our
company. In taking this step forward, our board of directors and
majority of stockholders have decided to modernize our corporate
governance and capital structures.
You are
receiving the following Notice of Action to be taken pursuant to
the Written Consent of Stockholders to inform you of changes being
made to the Company’s Articles of Incorporation and Bylaws
and the approval of a reverse stock split (the
(“Actions”). Because these Actions have been approved
by a majority of holders of the Company’s
common stock, the “Common Stock”), and
Series B Convertible, Voting, Preferred Stock, par value $0.001 per
share, of the Company (“Preferred Stock” and together
with the Company Common Stock, the “Voting Stock”), no
meeting of stockholders will be held to discuss these matters and
your proxy is not being solicited in connection with any
meeting.
The
Company’s Articles of Incorporation are being amended and
restated in order to bring together the several existing amendments
and designations and to adopt a provision allowing the members of
the board of directors (the “Board”) to vote on matters
before the Board in proportion to their ownership of the
Company’s Voting Stock. We believe that allowing Board
members to represent their ownership in the Company encourages
board members to take a meaningful stake in the Company and aligns
the Board’s interest with that of its
shareholders.
Similarly,
revisions to the Company’s Bylaws are intended to more
appropriately reflect Nevada law and provide for the efficient and
orderly management of the Company’s corporate governance
matters. We have included certain provisions in the Amended and
Restated Bylaws that formalize procedures by which shareholders
will participate in the Company’s governance and interact
with the Board.
Finally,
the reverse stock split is intended to make the Company’s
Common Stock more attractive to investors, increasing liquidity and
aiding in establishing a market for the Common Stock.
Thank
you for your support.
Sincerely
yours,
Nicholas
D. Gerber
Chairman of the Board, President
and Chief Executive Officer
CONCIERGE TECHNOLOGIES, INC.
29115
Valley Center Rd., Suite K-206
Valley
Center, CA 92082
INFORMATION STATEMENT PURSUANT TO SECTION 14(C) OF THE
SECURITIES EXCHANGE ACT OF 1934 AND REGULATION 14C
THEREUNDER
NOTICE OF ACTION TO BE TAKEN PURSUANT TO THE WRITTEN CONSENT OF
STOCKHOLDERS
DEFINITIVE
INFORMATION STATEMENT
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND
US A PROXY
To the
Stockholders of
CONCIERGE
TECHNOLOGIES, INC.
:
NOTICE IS HEREBY GIVEN,
that the holders of outstanding shares
of common stock, par value $0.001 per share, of Concierge
Technologies, Inc. (the “Company” and such common
stock, the “Common Stock”), and Series B Convertible,
Voting, Preferred Stock, par value $0.001 per share, of the Company
(“Preferred Stock” and together with the Company Common
Stock, the “Voting Stock”) representing, in the
aggregate, more than a majority of the outstanding voting power of
all outstanding shares of Voting Stock approved, via written
consent in lieu of a special meeting of the Company’s
stockholders on February 13, 2017 (the “Written
Consent”), the following corporate actions
(“Actions”):
1.
Electing
each of the director nominees named herein to the Company’s
board of directors (the “Board”) to serve a term
commencing on the Effective Date (as defined below) and expiring in
2018 when his or her respective successor is duly elected and
qualified, unless he or she resigns or is removed before the term
expires;
2.
Amending
and restating the Company’s articles of incorporation as of
the Effective Date;
3.
Amending
and restating the Company’s bylaws as of the Effective Date;
and
4.
Effecting
a one-for-thirty (1:30) reverse stock split of the Company’s
issued and outstanding Common Stock and Preferred Stock, at any
time between the Effective Date (as defined below) and December 31,
2017, as determined by the Board, without further approval from the
stockholders.
The
cost of furnishing this Information Statement will be borne by us.
We will request brokerage houses, nominees, custodians, fiduciaries
and other like parties to forward this Information Statement to the
beneficial owners of our voting securities held of record by them
and will reimburse such persons for out-of-pocket expenses incurred
in forwarding such material.
Your
vote is not required to approve the foregoing Actions, and the
enclosed Information Statement is not a request for your vote or a
proxy. The accompanying information statement is furnished only to
inform stockholders of the Actions taken by the Written Consent
described above before they take effect in accordance with Rule
14c-2 promulgated under the Securities Exchange Act of 1934, as
amended. This Information Statement is first being mailed to you on
or about February 28, 2017, and we anticipate an effective date of
the Actions to be March 20, 2017 (the “Effective
Date”), subject to the Board’s discretion on when to
implement the reverse stock split, or as soon thereafter as
practicable in accordance with applicable law, including the Nevada
Revised Statutes. No dissenters’ rights are afforded to our
stockholders under the Nevada Revised Statutes in connection with
the Actions described more fully below.
THIS IS NOT A NOTICE OF A MEETING OF STOCKHOLDERS’ AND NO
STOCKHOLDERS MEETING WILL BE HELD TO CONSIDER THE MATTERS DESCRIBED
HEREIN.
This Notice and the attached Information Statement are being sent
to you for informational purposes only, and you are not being asked
to take any action with respect to the Actions.
|
Date:
February 28, 2017
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By
Order of the Board of Directors,
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By:
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/s/
Nicholas
Gerber
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Nicholas
Gerber
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President,
Chief Executive Officer and Chairman of the Board of
Directors
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DEFINITIVE
INFORMATION STATEMENT
CONCIERGE TECHNOLOGIES, INC.
29115
Valley Center Road, Suite K-206
Valley
Center, CA 92082
INFORMATION STATEMENT PURSUANT TO SECTION 14(C)
OF THE SECURITIES EXCHANGE ACT OF 1934
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND
US A PROXY
This
Information Statement (“Information Statement”) has
been filed with the United States Securities and Exchange
Commission (“SEC”) pursuant to Section 14(c) of the
Securities Exchange Act of 1934, as amended (“Exchange
Act”), and is being furnished to the holders of the
outstanding shares of common stock, par value $0.001 per share
(“Company Common Stock”), and Series B Convertible,
Voting, Preferred Stock, par value $0.001 per share (“Company
Preferred Stock” and together with the Company Common Stock,
the “Voting Stock”), of Concierge Technologies, Inc., a
Nevada corporation (“Company,” “we,”
“us,” “our,” or similar terms). Pursuant to
Section 78.320 of the Nevada Revised Statutes, the Company
received, by written consent in lieu of a meeting (the
“Written Consent”), the approval of stockholders
holding 967,803,001 shares of Voting Stock (assuming the conversion
of the Preferred Stock), which represents 84.24% of the total
possible vote authorizing the following actions
(“Actions”):
1.
Electing
each of the director nominees named herein to the Company’s
board of directors (the “Board”) to serve a term
commencing on the Effective Date (as defined below) and expiring in
2018 when his or her respective successor is duly elected and
qualified, unless he or she resigns or is removed before the term
expires;
2.
Amending
and restating the Company’s articles of incorporation as of
the Effective Date;
3.
Amending
and restating the Company’s bylaws as of the Effective Date;
and
4.
Effecting
a one-for-thirty (1:30) reverse stock split of the Company’s
issued and outstanding Common Stock and Preferred Stock, at any
time between the Effective Date (as defined below) and December 31,
2017, as determined by the Board, without further approval from the
stockholders.
Under Section 14(c) of the Exchange Act and Rule
14c-2 promulgated there under, this Information Statement must be
sent to our stockholders a least twenty (20) days prior to the date
on which the Actions are intended to become effective. This
Information Statement was
mailed to our
stockholders on or about February 28, 2017 (“Mailing
Date”). We expect the Actions to become effective
approximately twenty-one (21) days after the Mailing Date.
Therefore, the effective date of the Actions is expected to be on
or about March 20, 2017 (“Effective Date”), subject to
the Board’s discretion on when to formally implement the
reverse stock split following the Effective
Date.
As our stockholders holding a majority of the
Voting Stock have already approved of the
Actions
by
Written Consent, we are not seeking approval for the
Actions
from
any of our remaining stockholders, nor will they be given an
opportunity to vote on the Actions. All necessary corporate
approvals have been obtained, and this Information Statement is
being furnished solely for the purpose of providing advance notice
to our stockholders of the Actions,
as
required by the Exchange Act.
We
will pay all costs associated with the distribution of this
Information Statement, including the costs of printing and mailing.
We will reimburse brokerage firms and other custodians, nominees
and fiduciaries for reasonable expenses incurred by them in sending
this Information Statement to the beneficial owners of our common
stock.
NO VOTE OR OTHER CONSENT OF OUR STOCKHOLDERS IS SOLICITED IN
CONNECTION WITH
THIS INFORMATION STATEMENT. WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY.
FORWARD LOOKING STATEMENTS
This
Information Statement and other reports that the Company files with
the SEC contain forward-looking statements about the
Company’s business containing the words
“believes,” “anticipates,”
“expects” and words of similar import. These
forward-looking statements involve known and unknown risks,
uncertainties and other factors that may cause actual results or
performance to be materially different from the results or
performance anticipated or implied by such forward-looking
statements. Given these uncertainties, stockholders are cautioned
not to place undue reliance on forward-looking statements. Except
as specified in SEC regulations, the Company has no duty to
publicly release information that updates the forward-looking
statements contained in this Information Statement. An investment
in the Company involves numerous risks and uncertainties, including
those described elsewhere in this Information Statement. Additional
risks will be disclosed from time-to-time in future SEC
filings.
ITEM ONE – ELECTION OF DIRECTORS
With
the adoption of the Amended and Restated Bylaws of the Company
(described later in Proposal 3), the Company’s Board will be
authorized to fix the size of the Board at no less than one and no
more than 12 directors. Accordingly, the Board has authorized the
expansion of the Board from seven to nine members. There are
currently 3 vacancies on the Board. Pursuant to the Written
Consent, the majority stockholders re-elected the four existing
directors and elected five new directors, for a total of nine
directors. Each director will serve a term commencing on the
Effective Date and expiring in 2018 when his or her respective
successor is duly elected and qualified, unless he or she resigns
or is removed before the term expires. Each of the individuals
described below has consented to serve as a director upon his or
her election.
The
following nominees for election as directors to serve a term to
expire in 2018 and until their successors are duly elected and
qualified:
|
Name
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Age
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Principal
Occupation
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Director
Since
|
|
Interested
Director Nominees:
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|
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Nicholas D.
Gerber
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54
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President,
CEO and Chairman of Concierge Technologies, Inc.
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2015
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Scott
Schoenberger
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50
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Owner
and CEO of KAS Engineering
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2015
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David
W. Neibert
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61
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Chief
Financial Officer of Concierge Technologies, Inc.
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2002
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Kathryn
D. Rooney
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44
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Chief
Marketing Officer of United States Commodities Funds,
LLC
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N/A
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Independent
Director Nominees:
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|
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Matt
Gonzalez
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51
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Chief
Attorney at the San Francisco Public Defender’s Office,
Partner in Gonzalez & Kim
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2013
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Tabatha
Coffey
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49
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Self-Employed
Consultant and Entrepreneur
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N/A
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Erin
Grogan
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42
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Vice
President of Finance and Operations at YouCaring
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N/A
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Joya
Harris
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43
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Director
of Research Integration for the American Cancer
Society
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N/A
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Derek
Mullins
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43
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Director
of Operations at Arrowpoint Asset Management
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N/A
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Biographical
information regarding our Board is set forth below. We have divided
the directors into two groups—independent directors and
interested directors. Although neither the Company’s Common
Stock nor Preferred Stock are listed for trading on the NYSE MKT,
for purposes of this Information Statement, independent directors
are those determined by the Board to be “independent
directors” for the purposes of Section 803 of the NYSE MKT
Company Guide.
Biographical
Information
Interested Directors
Nicholas D. Gerber
: Mr. Gerber
has been the President, Chief Executive Officer and Chairman of the
Board since January 2015. Mr. Gerber also served as President and
Chief Executive Officer of United States Commodity Funds, LLC
(“USCF”), which serves as the General Partner and
Manager to several related public funds, from June 2005 through
June 2015 and Vice President since June 2015. Mr. Gerber co-founded
USCF in 2005 and prior to that, he co-founded Ameristock
Corporation in March 1995, a California-based investment adviser
registered under the Investment Advisers Act of 1940 from March
1995 until January 2013. Mr. Gerber has also served as Vice
President/Chief Investment Officer of Lyon’s Gate Reinsurance
Company, Ltd. from June 2003 to 2009.
From August 1995 to January 2013, Mr. Gerber served as Portfolio
Manager of Ameristock Mutual Fund, Inc. On January 11, 2013, the
Ameristock Mutual Fund, Inc. merged with and into the Drexel
Hamilton Centre American Equity Fund, a series of Drexel Hamilton
Mutual Funds. Drexel Hamilton Mutual Funds is not affiliated with
Ameristock Corporation, the Ameristock Mutual Fund, Inc. or USCF.
From the period June 2014 to the present, Mr. Gerber also serves as
Chairman of the Board of Trustees of USCF ETF Trust, an investment
company registered under the Investment Company Act of 1940, as
amended, and has previously served as President of USCF Advisers
LLC. USCF Advisers LLC, an affiliate of USCF, is an investment
adviser registered under the Investment Advisers Act of 1940, and,
as of January 2017, is pending as a commodity pool operator, NFA
member and swap firm. In addition to his role as Chairman of the
Board of USCF ETF Trust, he also served as its President and Chief
Executive Officer from June 2014 until December 2015. In these
roles, Mr. Gerber has gained extensive experience in evaluating and
retaining third-party service providers, including custodians,
accountants, transfer agents, and distributors. Mr. Gerber has been
a principal of USCF listed with the CFTC and NFA since November
2005, an NFA associate member and associated person of USCF since
December 2005 and a Branch Manager of USCF since May 2009. As of
January 2017, he also is a principal, associated person pending,
swap associated person pending, and branch manager pending of USCF
Advisers LLC. Mr. Gerber earned an MBA degree in finance from the
University of San Francisco, a B.A. from Skidmore College and holds
an NFA Series 3 registration.
The
Board believes that Mr. Gerber is qualified to serve on the Board
and as Chairman because of his experience as President and Chief
Executive Officer and Chairman of the Company, his past experience
at various firms in the financial services industry as well as his
serving on the boards of directors of numerous private and public
companies and funds.
Scott
Schoenberger
. Mr. Schoenberger
is the owner & CEO of KAS Engineering, a second generation
plastic injection molding firm based in multiple southern
California locations. He also is the owner and Chief Executive
Officer of Nica Products, another manufacturing company based in
Orange County, California. Scott has over 30 years of experience
serving in executive roles at companies in the manufacturing and
technology industries. He has been involved with several startups
as a consultant and/or angel level investor in such industries as
medical, technology, consumer products, electronics, automotive,
and securities industries. Mr. Schoenberger received a BS in
Environmental Studies from the University of California Santa
Barbara.
The
Board believes that Mr. Schoenberger is qualified to serve on the
Board because his experience as an executive allows him to provide
the Board with key insights into the Company’s operations and
future acquisitions.
David W.
Neibert
. Mr. Neibert has been a
director of Concierge Technologies since June 17, 2002 and Chief
Executive Officer of Concierge from April 2007 until January 2015,
whereafter he resigned the office and assumed the title of Chief
Financial Officer. He is also a director and officer of the
Company’s wholly owned subsidiaries Kahnalytics, Inc.,
Gourmet Foods and Brigadier Security Systems. Mr. Neibert is also
the president of The Wallen Group, a general partnership providing
management consulting and bookkeeping services to small and medium
sized businesses in the Southern California area. Prior to founding
The Wallen Group, Mr. Neibert served as the president of Roamer One
and as a director and executive vice president of business
development of their publicly traded parent company Intek Global
Corporation. Intek Global Corporation manufactured, sold and
distributed radio products globally to the consumer, government and
commercial markets through their subsidiary Midland Radio, operated
a nationwide land mobile radio network in the U.S. known as Roamer
One, and developed and manufactured radio components through their
UK subsidiary named Linear Modulation Technologies. Intek Global
Corporation was subsequently acquired by its majority shareholder,
Securicor plc of Sutton Surrey, England where Mr. Neibert continued
as a consultant until forming The Wallen Group in
1997.
The
Board believes that Mr. Neibert is qualified to serve on the Board
because of his familiarity with the Company and its subsidiaries as
his years of experience in management consulting and bookkeeping
for public and private companies.
Kathryn D.
Rooney
. Ms. Rooney serves as
the Company’s Chief Communications Officer, is Chief
Marketing Officer of USCF and brings over 20 years of experience in
marketing and investor relations. Ms. Rooney is responsible for
marketing, brand management and overall product distribution for
USCF. Prior to joining USCF, Ms. Rooney was Director of Business
Development for the Ameristock Mutual Fund. She also served as
National Sales Director for ALPS Mutual Fund Services and as a
Trust Officer for Fifth Third Bank. Ms. Rooney received her
Bachelor of Arts degree in Economics and Psychology with a minor in
Art History from Wellesley College. Ms. Rooney is a registered
representative of ALPS Distributors, Inc.
The
Board believes that Ms. Rooney is qualified to serve on the Board
because of her familiarity with the Company and its marketing and
investor relations strategy.
Independent Directors
Matt
Gonzalez
.
Mr.
Gonzalez is an attorney with experience handling both civil and
criminal matters in both the state and federal courts. He has a BA
from Columbia University (1987) and JD from Stanford Law School
(1990). Since early 2011 he has served as the Chief Attorney of the
San Francisco Public Defender's Office where he oversees an office
of over 90 trial lawyers. He previously served as an elected member
of the San Francisco Board of Supervisors from 2001-2005, and
served as the president of the body from 2003-2005. Mr. Gonzalez is
a partner in Gonzalez & Kim, a California partnership providing
transportation services to a number of entities. He is a co-owner
of Flywheel Taxi (formerly DeSoto Taxi) in San Francisco. He joined
the Company as an investor in 2010 and became a director during
2013.
The
Board believes that Mr. Gonzalez is qualified to serve on the Board
because of his familiarity with the Company and his experience as a
team leader and business manager.
Tabatha
Coffey
. Ms. Coffey is an
entrepreneur whose business is to help small business owners
restructure and scale their businesses. Ms. Coffey’s work is
featured on a television show broadcast on the Bravo network titled
“Tabatha Takes Over.” Ms. Coffey regularly advises
television shows and publications, including the TV Guide Channel
as their red carpet award show correspondent for the Academy and
Grammy Awards. She is also regularly featured as an editorial
stylist and contributing writer for People Style Watch, Elle.com,
PopSugar and is a regular guest on the Sirius radio network’s
Larry Flick radio show, The Talk and Good Morning America. Ms.
Coffey has over 30 years of experience managing, consulting and
developing businesses in Australia, Great Britain and the United
States.
The
Board believes that Ms. Coffey is qualified to serve on the Board
because of her business acumen and experience managing businesses
and advising business managers.
Erin
Grogan
. Ms. Grogan is a Vice
President of Finance and Operations at YouCaring, a crowdfunding
platform for medical fundraisers and other charitable causes. Prior
to joining YouCaring, Ms. Grogan was the Director of Finance and
Planning as well as an adjunct faculty member at the University of
San Francisco, School of Management from 2012 until 2016. Ms.
Grogan has over 20 years of experience in management and finance
both in-house, including positions at ON24, Inc., Georgia Solar
Energy Association, Moorland Partners, Cadbury Schweppes –
Snapple Division, Asbury Automotive Group and Banc of America
Securities, and as an external consultant with
PricewaterhouseCoopers and American International Group. Ms. Grogan
earned a BA from Columbia University and an MBA in finance from the
New York University Leonard N. Stern School of
Business.
The
Board believes that Ms. Grogan is qualified to serve on the Board
because of her extensive background in finance and
management.
Joya
Harris
. Ms. Harris has been the
Director of Research Integration for the American Cancer Society
since 2012. In this role she provides oversight and management of
the integration of Extramural Grants Department research and
training program outcomes into enterprise-wide organization and
mission objectives. Before joining the American Cancer Society, Ms.
Harris worked for Y-ME National Breast Cancer Organization. From
2008 to 2011, Ms. Harris has over a decade of experience in
non-profit management, previously serving as the Executive Director
for the Association of Village PRIDE and as the Director of Product
Development for the Metropolitan Atlanta Chapter of the American
Red Cross. Her experience and demonstrated accomplishments in key
leadership functions including program development, implementation,
and evaluation; curriculum design; grant-writing and resource
development; meeting planning; board cultivation and management;
and developing business partnerships. Ms. Harris has also served as
a Consumer Peer Reviewer for the Congressionally Directed Medical
Research Programs (CDMRP), administered by the Department of
Defense, sitting alongside scientists to review and evaluate
innovative breast cancer research grant proposals. Ms. Harris
earned a BA from Wellesley College, and received a Masters of
Public Health degree with concentration in public health policy and
management from the Rollins School of Public Health of Emory
University. She serves as the President of the Atlanta Wellesley
Club, overseeing membership of over 400
alumnae.
The
Board believes that Ms. Harris is qualified to serve on the Board
because of her wealth of leadership experience and diverse
professional experience.
Derek
Mullins
. Mr. Mullins currently
serves as the Director of Operations at Arrowpoint Asset Management
and the Chief Financial Officer and Treasurer of Meridian Fund,
Inc. and Destra Investment Trust. Mr. Mullins also served as
Director of Operations at Black Creek Capital and Dividend Capital
from 2004 to 2009 and as Manager of Fund Administration at ALPS
Fund Services from 1996 to 2004. Mr. Mullins brings over 20 years
of operations and finance experience to the Board. Mr. Mullins
earned a BS in Finance from the University of Colorado, Boulder and
a Master’s degree in Finance from the University of Colorado,
Denver.
The
Board believes that Mr. Mullins is qualified to serve on the Board
because of his extensive background in finance and his experience
as an executive officer of public companies.
Compensation of Directors
The
following table sets forth the compensation that we paid during the
year ended December 31, 2016 to our directors.
Compensation of Executive Officers
The
following table summarizes the compensation of our Named Executive
Officers, or NEOs, for the fiscal year ended December 31,
2016.
Summary Compensation Table
The
following table sets forth the compensation paid to our executive
officers for the fiscal years ended June 30, 2016 and 2015. Unless
otherwise specified, the term of each executive officer is that as
set forth under that section entitled, “Directors, Executive
Officers, Promoters and Control Persons -- Term of
Office”.
|
Name and Principal Position
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Year Ended
June 30,
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Salary
($)
|
Bonus
($)
|
Stock Awards
($)
|
Option Awards
($)
|
Non-Equity Incentive Plan Compensation
($)
|
Nonqualified Deferred
Compensation Earnings
($)
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All Other
Compensation on ($)
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Total ($)
|
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Nicholas Gerber
President and Chief Executive Officer
|
2015
|
Nil
|
Nil
|
Nil
|
Nil
|
Nil
|
Nil
|
Nil
|
Nil
|
|
2016
|
Nil
|
Nil
|
Nil
|
Nil
|
Nil
|
Nil
|
Nil
|
Nil
|
|
David Neibert (1)
Chief Financial Officer
|
2015
|
Nil
|
Nil
|
Nil
|
Nil
|
Nil
|
Nil
|
75,000
|
75,000
|
|
2016
|
Nil
|
Nil
|
Nil
|
Nil
|
Nil
|
Nil
|
81,250
|
81,250
|
(1)
The Wallen Group, a
California general partnership controlled by David Neibert, has
been paid $83,333 during the current fiscal year for consulting and
administrative services.
Outstanding Equity Awards at Fiscal Year-End
There
were no unexercised stock options, stock that has not vested, or
equity incentive plan awards for any named officer outstanding at
the end of the fiscal year ended June 30 2016.
INFORMATION ABOUT OUR CORPORATE GOVERNANCE
Board of Directors Meetings and Committees
During
the fiscal year ended June 30, 2016, the Board, as then
constituted, met at least once per quarter with additional special
meetings conducted telephonically to address issues arising from
acquisition transactions and other non-routine events. The Board
has not formed any standing committees; however, during July 2016,
the Board did create an ad hoc independent advisory committee to
advise it as to the fairness of the transaction that resulted in
the acquisition of Wainwright Holdings. During fiscal year ended
June 30, 2016, each director then serving on the Board attended at
least 75% of the aggregate number of meetings of the Board, either
in person or telephonically.
It
is anticipated that each of the current members of the Board will
attend the Company’s 2017 Annual Meeting of Stockholders. The
Company does not have a formal policy with respect to
directors’ attendance at the Annual Meeting of
Stockholders.
Board Leadership Structure and Role in Risk Oversight
Under the Company’s Amended and Restated
Bylaws, the Board elects the Company’s Chairperson and Chief
Executive Officer. Each of these positions may be held by the same
person or may be held by different people. Currently, these two
offices are held by Mr. Gerber. The Board believes that the Company
and its stockholders are best served by having a policy that
provides the Board the ability to select the most qualified and
appropriate individual to lead the Board as Chairperson. The Board
also believes it is important to remain flexible when allocating
responsibilities among these two offices in a way that best serves
the needs of the Company.
The Board believes that
having Mr. Gerber serve as both Chairman and CEO provides an
efficient and effective leadership model for the Company. Combining
the Chairman and CEO roles fosters clear accountability, effective
decision-making, and alignment on corporate
strategy.
The
Company is exposed to a number of risks that are inherent with
every business. Such risks include, but are not limited to,
financial and economic risks and legal and regulatory risks. While
management is responsible for the day-to-day management of these
risks, the Board is responsible for the oversight of risk
management. The Board is responsible for evaluating the adequacy of
risk management processes and determining whether such processes
are being implemented by management. The Board will discuss
significant risks or exposures and assess the steps management has
taken to minimize such risks to the Company.
Independent Directors
The
Board has adopted the standard of independence set forth in the
NYSE MKT Company Guide in order to determine whether members of the
Board are “independent”. Upon consideration of the
criteria and requirements regarding director independence set forth
in Section 803 of the NYSE MKT Company Guide, the Board has
determined that the following five directors, Matt Gonzalez,
Tabatha Coffey, Erin Grogan, Joya Harris and Derek Mullins, meet
the NYSE MKT’s independence standards, including the criteria
for independence set forth in Rule 10A-3(b)(1) of the Exchange
Act.
Committees
The
Board does not currently have any standing committees. Prior to the
expansion of the Board and the election of the director Nominees,
the Board was comprised of four directors, with an additional 3
vacancies. The Board did not believe it was necessary to form
standing committees due to the Company’s and the
Board’s small size. As previously composed, the Board was
able to efficiently address matters such as the nomination of
candidates for director and the review and approval of executive
officer and director compensation. Following the effectiveness of
the expansion of the Board and the election of the director
Nominees, the Board will review the appropriateness of forming
standing audit, nominating, corporate governance and compensation
committees in light of the Company’s growth and the expansion
of the Board and will form such standing or ad hoc committees as
the Board deems appropriate.
Director Nominations and Nomination Committee
The Board does not currently have a standing
nominating committee. T
he full Board recommends nominees for
election by the Company’s shareholders and is responsible for
monitoring and safeguarding the independence of the
Board.
Under
the Company’s Amended and Restated Bylaws, Stockholders may
recommend any person to be a director of the Company by writing to
the Company’s Secretary not less than 45 days nor more than
75 days prior to the date on which the Company first mailed its
proxy materials for the previous year’s annual
stockholders’ meeting. Each submission must include (i) a
brief description of the candidate, (ii) the candidate’s
name, age, business address and residence address, (iii) the
candidate’s principal occupation and the number of shares of
the Company’s capital stock beneficially owned by the
candidate and (iv) any other information that would be required
under the Commission’s rules in a proxy statement listing the
candidate as a nominee for director. The Amended and Restated
Bylaws revised and updated the Company’s previous procedures
for stockholder submission of director nominations by adding the
requirement for advance notice.
In
conducting a search for director candidates, the Board may use its
network of contacts to compile a list of potential candidates, but
it may also engage, if it deems appropriate, a professional search
firm. The Board generally reviews all recommended candidates at the
same time and subjects all candidates to appropriate review
criteria. Members of the Board should be qualified, dedicated, and
ethical and have experience relevant to the Company’s
operations and understand the complexities of the Company’s
business environment. The Board evaluates candidates in the context
of the current composition of the Board. As part of this
assessment, Board considers diversity of age, skills and such other
factors as it deems appropriate, given the current needs of the
Board and its committees.
Stockholder Communications with the Board
Stockholders
may communicate with the Board by written correspondence.
Correspondence from the Company’s stockholders to the Board
or any individual directors or officers should be sent to the
Company’s Secretary. The Secretary will screen all
communications for product inquiries, new product suggestions,
resumes, job inquiries, surveys, business solicitations and
advertisements, as well as hostile, threatening, illegal,
unsuitable, frivolous, patently offensive or otherwise
inappropriate material before forwarding the correspondence to the
Board. Correspondence addressed to either the Board as a body, or
to any director individually, will be forwarded by the
Company’s Secretary to the Chairman of the Board or to the
individual director, as applicable. The Company’s Secretary
will regularly provide to the Board a summary of all stockholder
correspondence that the Secretary receives. This process has been
approved by the Company’s Board.
All
correspondence should be sent to Concierge Technologies, Inc.,
29115 Valley Center Rd., Suite K-206 Valley Center, CA 92082,
Attention: Ms. Carolyn Yu, Secretary and General
Counsel.
Code of Business Conduct and Ethics
The Board has adopted a code of ethics (the
“Code”) designed, in part, to deter wrongdoing and to
promote honest and ethical conduct, including the ethical handling
of actual or apparent conflicts of interest between personal and
professional relationships, full, fair, accurate, timely and
understandable disclosure in reports and documents that the Company
files with or submits to the Commission and in the Company’s
other public communications, compliance with applicable
governmental laws, rules and regulations, the prompt internal
reporting of violations of the code to an appropriate person or
persons, as identified in the code, and accountability for
adherence to the code. The Code applies to all directors, executive
officers and employees of the Company. The Company will provide a
copy of the Code to any person without charge, upon request to Ms.
Carolyn Yu, Secretary and General Counsel by calling 866-800-2978
or by writing to Concierge Technologies, Inc., 29115 Valley Center
Rd., Suite K-206 Valley Center, CA 92082, Attention: Ms. Carolyn
Yu, Secretary and General Counsel.
The Company
intends to disclose any amendments to or waivers of its Code as it
applies to directors or executive officers by filing them on Form
8-K.
ITEM THREE – ADOPTION OF AMENDED AND RESTATED
BYLAWS
Pursuant to the
Written Consent, stockholders holding a majority of our Voting
Stock approved the amendment and restatement of the Company’s
Bylaws, a copy of which is attached hereto as
Exhibit B
(the "Amended and
Restated Bylaws"), effective as of the Effective Date. The Amended
and Restated Bylaws remove provisions that were unique to a
predecessor of the Company and are designed to make the
administration of the future operations of the Company more
efficient and provide more flexibility for the management of the
Company within the limits of applicable law, including allowing the
Board to set the number of Directors and fill vacancies in the
Board or amend the bylaws, without the time or expense required to
call for a meeting of shareholders. The adoption of the Amended and
Restated Bylaws will not alter the directors' fiduciary obligations
to the Company.
Description of Amendments
The
following discussion briefly summarizes the significant differences
between the current Bylaws of the Company (the “Old
Bylaws”) and the Amended and Restated Bylaws.
|
Location of Change
|
Summary of Provision
|
Rationale Supporting Change
|
|
New Section 2.2
|
New Section 2.2 increases the threshold for a stockholder to call a
stockholders’ meeting from 10% to 15%.
|
The increased threshold ensures that that the Company will only
bear the expense of holding a stockholders’ meeting if
requested by a meaningful percentage of the stockholders’
base.
|
|
New Section 2.4
|
New Section 2.4 provides that in order for stockholders’
business to be considered properly brought before a meeting called
by a stockholder, notice of such proposal must be provided to the
Company not less than 120 days before the date of the
Company’s proxy statement released to stockholders in
connection with the previous year’s annual meeting or as
otherwise provided in the Company’s proxy materials for the
most recent meeting of stockholders. Notice provided by such
Stockholder must include a description of the proposal, the name
and address of the proposing stockholders, the class and number of
shares held by such stockholders, and a description of any
interests the stockholder may have related to such
proposal.
|
This provision will afford the Company an appropriate amount of
time to consider whether stockholder proposals are appropriately
submitted and allow the Company and its Board to assess whether
adopting such proposals is appropriate for the Company and make a
recommendation to its stockholders.
|
|
New Section 2.5
|
New Section 2.5 provides that in addition to other applicable
requirements, in order to be considered timely, notice of
stockholder nominations for director must be submitted to the
Company not less than 45 days more nor less than 75 days prior to
the date on which the Company first mailed its proxy materials for
the previous year’s annual meeting of stockholders. New
Section 2.5 requires that such notice include information necessary
for the Board to determine the nominee’s qualifications to
serve on the Board and independent status from the
Company.
|
This provision will afford the Board the appropriate time and
information to determine whether stockholder nominees for Director
are qualified candidates and to make a recommendation to
stockholders on whether to vote for such nominee.
|
|
New Sections 3.1(a), (b) and (c)
|
New Section 3.1 replaces Article III, Section 2 of the Old Bylaws
and allows the Board to set the number of directors by resolution
at a number no less than 1 and no more than 12.
New Section 3.1 provides that directors shall be elected by a
majority of stockholders until such time that (a) the
Company’s stock becomes listed on a national securities
exchange, such as the New York Stock Exchange or Nasdaq Stock
Market and (b) the Company is subject to a requirement that a
majority of its board of directors be comprised of
“independent directors”. During any period in which
both (a) and (b) above are true, the Company’s directors
shall be elected by a plurality stockholder vote.
New Section 3.1(c) provides that only the Board may fill vacancies
by reason of death, resignation, disqualification or removal from
office.
|
These provisions are intended to streamline the director election
process and allow the Board to more efficiently fill vacancies. The
amendment to the provision controlling the number of directors
clarifies language in the Old Bylaws.
|
|
New Section 3.5
|
New Section 3.5 replaces Article VIII, Section 1, allowing the
Board discretion to declare dividends as often and in such amounts
as permitted by law.
|
This provision permits the Board greater discretion to declare
distributions and to administer such distribution
declarations.
|
In
addition to these revisions, the Amended and Restated Bylaws
remove, in their entirety, references to requirements of California
law, which were adopted when the Company’s predecessor was a
California corporation, and would not otherwise apply to the
Company. While the removal of this section will omit certain
requirements for the Company to provide reports to shareholders,
the Company will continue to file and provide to shareholders
current, quarterly and annual reports as required under Section 13
of the Securities Exchange Act of 1934, as amended.
Potential Anti-Takeover Effect
Several
of the new bylaw provisions may have the effect of deterring future
attempts to gain control of the Company. First, by increasing the
threshold for stockholders to call a stockholder’s meeting
from 10% to 15% the Amended and Restated Bylaws make it more
difficult for a stockholder to call a meeting in order to replace
existing members of the Board or to adopt other proposals to
require certain actions be taken by the Company. Second, advance
notice provisions for stockholders submitting proposals and
director nominees may create hurdles for stockholders and deter
attempts to gain control of the Board. Because the Board will now
also have the sole ability to fill vacancies on the Board,
stockholders will not be able to use such vacancies as a means to
gain control of a seat on the Board.
ITEM FOUR – THE REVERSE STOCK SPLIT
The Board and
the majority stockholders have approved the adoption of a one-for-
thirty (1:30) reverse stock split whereby each thirty shares of
Common Stock and Preferred Stock issued and outstanding as of the
record date established by the Board shall be combined into one
share of Common Stock or Preferred Stock, as applicable (the
“Reverse Stock Split”). The Reverse Stock Split will
become effective as determined by the Board in its discretion at
any time between the Effective Date of this Information Statement
and December 31, 2017.
Fractional Shares
We will not issue fractional
certificates for post-Reverse Stock Split shares in connection with
the Reverse Stock Split. In the event a fractional share results
from the calculation of the Reverse Stock Split formula, the
Company will issue an additional fraction of a share such that the
holder in question will receive a full share of Common Stock or
Preferred Stock, as applicable. As a result, all stockholders will
receive at least one share of Common Stock or Preferred Stock, as
applicable.
Purpose and Effect of the Reverse Stock Split
The
Board believes the Reverse Stock Split is desirable for several
reasons. The Common Stock currently trades on the OTCQB market and
is thinly traded. The Reverse Stock Split is intended to increase
the per-share value of our Common Stock such that it is no longer
subject to “penny stock” trading restrictions and
assist the Company in applying to list the Common Stock on a
national securities exchange, such as the NYSE, Nasdaq or NYSE MKT,
which requires certain minimum value thresholds for listed
securities. The Board believes that listing the Common Stock on a
national securities exchange might increase liquidity and result in
a broader market for the Common Stock than that which currently
exists. There can be no assurance that any liquidity created by
listing on a national securities exchange will not be adversely
affected by the reduced number of shares of Common Stock
outstanding after the Reverse Stock Split.
There
can be no assurance that any or all of the intended effects will
occur; including, without limitation, that the market price per
share of Common Stock after the Reverse Stock Split will be equal
to the applicable multiple of the market price per share of Common
Stock before the Reverse Stock Split, or that such price will
either exceed or remain in excess of the current market price.
Further, there is no assurance that the market for the Common Stock
will be improved. Stockholders should note that the Board cannot
predict what effect the Reverse Stock Split will have on the market
for, or market price of, the Common Stock.
In
addition, by increasing the number of authorized but unissued
shares of Common Stock, the Reverse Stock Split could, under
certain circumstances, have an anti-takeover effect, although this
is not the intent of the Board. For example, it may be possible for
the Board to delay or impede a takeover or transfer of control of
the Company by causing such additional authorized but unissued
shares to be issued to holders who might side with the Board in
opposing a takeover bid that the Board determines is not in the
best interests of the Company or its stockholders. The Reverse
Stock Split therefore may have the effect of discouraging
unsolicited takeover attempts and may limit the opportunity for the
Company’s stockholders to dispose of their shares at the
higher price generally available in takeover attempts. However, the
Board is not aware of any attempt to take control of the Company
and the Board has not approved the Reverse Stock Split with the
intent that it be utilized as a type of anti-takeover
device.
Following the
Reverse Stock Split, stockholders will hold the same percentage
interest in the Company as they held prior to the Reverse Stock
Split, but their interest will be represented by one-thirtieth as
many shares. For instance, if a stockholder presently owns thirty
shares, after the Reverse Stock Split they will own one
share.
Based
on the number of shares of Common Stock and Preferred Stock
currently issued and outstanding, immediately following the Reverse
Stock Split the Company will have approximately 29,558,462 shares
of Common Stock and 436,949 shares of Preferred Stock issued and
outstanding (without giving effect to the treatment of fractional
shares). In addition, all outstanding debentures and other
instruments entitling their holders to acquire shares of Common
Stock or Preferred Stock will be adjusted as a result of the
Reverse Stock Split. In particular, the conversion ratio for each
instrument will be reduced, and the exercise price, if applicable,
will be increased, based on the ratio of the Reverse Stock
Split.
The par value
of the Common Stock will remain at $0.001 per share and the par
value of the Preferred Stock will remain at $0.001 per share
following the Reverse Stock Split, the number of authorized shares
of Common Stock will remain at 900,000,000 and the number of
authorized shares of Preferred Stock will remain at 50,000,000, and
the number of shares of the Common Stock and Preferred Stock issued
and outstanding will be reduced. As a consequence, the aggregate
par value of the outstanding Common Stock and Preferred Stock will
be reduced, while the aggregate capital in excess of par value
attributable to the outstanding Common Stock and Preferred Stock
for statutory and accounting purposes will be correspondingly
increased. The Reverse Stock Split will not affect the
Company’s total stockholder equity. All share and per share
information would be retroactively adjusted following the Effective
Date to reflect the Reverse Stock Split for all periods presented
in future filings.
The
Board reserves the right, notwithstanding stockholder approval and
without further action by stockholders, to elect not to proceed
with the Reverse Stock Split if the Board determines that the
Reverse Stock Split is no longer in the best interests of the
Company and its stockholders.
Potential Anti-Takeover and Dilutive Effects
The
purpose of the reverse stock split is not to establish
any barriers to a change of control or acquisition of the Company.
However, because the number of authorized shares of Voting Stock
will not be reduced, this proposal, when adopted and implemented,
will result in a relative increase in the number of authorized but
unissued shares of Voting Stock vis-à-vis the outstanding
shares of Voting Stock and could, under certain circumstances, have
an anti-takeover effect. Shares of Voting Stock that are authorized
but unissued provide our Board with flexibility to effect, among
other transactions, public or private financings, mergers,
acquisitions, stock dividends, stock splits and the granting of
equity incentive awards. However, these authorized but unissued
shares may also be used by our Board, consistent with and subject
to its fiduciary duties, to deter future attempts to gain control
of us or make such actions more expensive and less desirable. After
implementation of the proposed amendment, our Board will continue
to have authority under the provisions of our Amended and Restated
Articles of Incorporation to issue additional shares from time to
time without delay or further action by the stockholders except as
may be required by applicable law or regulation. Our Board is not
aware of any attempt to take control of our business and has not
considered the reverse stock split to be a tool to be
utilized as a type of anti-takeover device. We currently have no
plans, proposals or arrangements to issue any shares of common
stock that would become newly available for issuance as a result of
the reverse stock split.
In
addition, if we do issue additional shares of our common stock, the
issuance could have a dilutive effect on earnings per share and the
book or market value of the outstanding common stock, depending on
the circumstances, and would likely dilute a stockholder’s
percentage voting power in the Company. Holders of common stock are
not entitled to preemptive rights or other protections against
dilution. Our Board intends to take these factors into account
before authorizing any new issuance of shares.
U.S. Federal Income Tax Consequences of the Reverse Stock
Split
The Company
will not seek an opinion of counsel or a ruling from the Internal
Revenue Service regarding the federal income tax consequences of
the Reverse Stock Split. The Company, however, believes that the
Reverse Stock Split will have, among others, the following material
federal income tax effects:
●
A stockholder will
not recognize gain or loss on the exchange of Voting Stock as a
result of the Reverse Stock Split. In the aggregate, the
stockholder’s basis in shares will be the same as his or her
basis in shares prior to the Reverse Stock Split (including any
fractional share deemed received).
●
A
stockholder’s holding period for tax purposes for shares of
Voting Stock will be the same as the holding period for tax
purposes of the shares of Voting Stock exchanged therefor as a
result of the Reverse Stock Split.
●
The Reverse Stock
Split will constitute a reorganization within the meaning of
Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as
amended, or will otherwise qualify for general non-recognition
treatment, and the Company will not recognize any gain or loss as a
result of the Reverse Stock Split.
The above
summary does not discuss any state, local, foreign or other tax
consequences. The summary is for general information only and does
not discuss consequences which may apply to special classes of
taxpayers. The tax treatment of a stockholder may vary depending
upon the particular facts and circumstances of such
stockholder.
Accordingly,
stockholders are urged to consult with their tax advisers as to the
particular tax consequences to them of the reverse stock split,
including the federal, state, local, foreign and other tax
consequences and of potential changes in applicable tax
laws.
Procedure for Exchange of Stock Certificates
The
Reverse Stock Split will become effective as determined by the
Board in its discretion at any time between the Effective Date of
this Information Statement and December 31, 2017. Upon the
effectiveness of the Reverse Stock Split, each certificate
representing pre-reverse split shares will be deemed for all
corporate purposes to evidence ownership of post-reverse split
shares.
Our transfer
agent, Issuer Direct, 500 Perimeter Park Drive, Morrisville, North
Carolina 27560, Phone: (877) 481-4014, will act as exchange agent
for purposes of implementing the exchange of stock certificates. We
refer to such person as the “Exchange Agent.” Holders
of pre-reverse split shares are asked to surrender to the Exchange
Agent certificates representing pre-reverse split shares in
exchange for certificates representing post-reverse split shares.
No new certificates will be issued to a stockholder until that
stockholder has surrendered the stockholder's outstanding
certificate(s).
STOCKHOLDERS SHOULD NOT DESTROY ANY STOCK CERTIFICATE
BENEFICIAL OWNERSHIP OF COMMON STOCK
The
following table sets forth information as of February 8, 2017, with
respect to the beneficial ownership (as defined in Rule 13d-3 of
the Exchange Act) of the Company’s common stock by (1) each
director of the Company, (2) the named Executive Officers of the
Company, (3) each person or group of persons known by the Company
to be the beneficial owner of greater than 5% of the
Company’s outstanding common stock, and (4) all directors and
officers of the Company as a group:
|
|
Prior to the
Reverse Stock Split
|
After the
Reverse Stock Split
|
|
Name and Address
of Beneficial Owner(1)(2)
|
Amount of
Beneficial Ownership of Shares
|
Percentage of
Common Stock Outstanding(3)
|
Amount of
Beneficial Ownership of Shares
|
Percentage of
Common Stock Outstanding(3)
|
|
Interested
Directors
|
|
|
|
|
|
Nicholas
Gerber(4)
|
543,900,077
|
47.34
%(6)
|
18,130,003
|
47.34
%
|
|
Scott Schoenberger
(5)
|
140,939,285
|
12.27
%(6)
|
4,697,977
|
12.27
%
|
|
David Neibert
(7)
|
947,560
|
0.08
%
|
31,586
|
0.08
%
|
|
Kathryn D.
Rooney
|
—
|
—
|
—
|
—
|
|
Independent
Directors
|
|
|
|
|
|
Matt Gonzalez
(8)
|
7,001,720
|
0.61
%
|
233,391
|
0.61
%
|
|
Tabatha
Coffey
|
—
|
—
|
—
|
—
|
|
Erin
Grogan
|
—
|
—
|
—
|
—
|
|
Joya
Harris
|
—
|
—
|
—
|
—
|
|
Derek
Mullins
|
—
|
—
|
—
|
—
|
|
Beneficial
Owners of Greater than 5%
|
|
|
|
|
|
Gerber Family
Irrevocable Trust(9)
|
168,706,288
|
14.68
%
|
5,623,543
|
14.68
%
|
|
Eliot & Sheila
Gerber (10)
|
106,308,072
|
9.25
%
|
3,543,603
|
9.25
%
|
|
All Beneficial
Owners as a Group (11)
|
|
|
|
|
(1)
Except as otherwise
noted, the address of each of these persons is c/o the Company at
29115 Valley Center Road, Suite K-206, Valley Center, CA
92082.
(2)
Unless otherwise
noted, all persons named in the table have sole voting and
dispositive power with respect to all Common Stock beneficially
owned by them.
(3)
The percentage of
class is calculated pursuant to Rule 13d-3(d) of the Exchange Act
which percentages are calculated on the basis of the amount of
outstanding securities, plus securities deemed outstanding pursuant
to Rule 13d-3(d)(1). The percentage of common stock outstanding is
as of November 2, 2016, and based upon 886,753,846 shares of common
outstanding and 13,108,474 shares of Series B Preferred Stock,
giving effect to the conversion of all Series B Preferred Stock at
a ratio of 20:1, for a total issued and outstanding amount of
1,148,923,323 shares.
(4)
Mr. Gerber is the
Chief Executive Officer, President and Chief Executive Officer of
the Company and Chairman of the Board. Mr. Gerber’s shares
are held by the Nicholas and Melinda Gerber Living Trust (the
“Gerber Trust”) and Mr. and Mrs. Gerber serve as
trustees of the Gerber Trust, which owns a total 543,900,077
shares, consisting of 313,549,040 shares of Common Stock and
11,517,552 shares of Series B Preferred Stock (which, after giving
effect to their conversion, would be 230,351,040 shares of Common
Stock) representing 47.34% of the outstanding shares of Common
Stock (giving effect to the conversion of the Series B Preferred
Stock held by the Gerber Trust) which percentage is based on
1,148,923,323 outstanding shares of Common Stock (giving effect to
the conversion of all Series B Preferred Stock). As such, the
Gerber Trust and Mr. Gerber share power to vote or to direct the
vote of the shares and share power to dispose or to direct the
disposition of these shares.
(5)
Mr. Schoenberger is
a member of the Board of the Company. Mr. Schoenberger’s
shares are held by the Schoenberger Family Trust (the
“Schoenberger Trust”) and Mr. Schoenberger serves as
sole trustee of the Schoenberger Trust, and total 140,939,285
shares, consisting of 119,304,945 shares of Common Stock and
1,081,717 shares of Series B Preferred Stock (which, after giving
effect to their conversion, would be 21,634,340 shares of Common
Stock) representing 12.27% of the outstanding shares of Common
Stock (giving effect to the conversion of the Series B Preferred
Stock held by the Schoenberger Trust) which percentage is based on
1,148,923,323 outstanding shares of Common Stock (giving effect to
the conversion of all Series B Preferred Stock). As such, the
Schoenberger Trust and Mr. Schoenberger share power to vote or to
direct the vote of the shares and share power to dispose or to
direct the disposition of these shares.
(6)
Upon acquiring
their shares of Voting Stock, Messrs. Gerber and Schoenberger have
voted all shares of Voting Stock concurringly on matters submitted
to the Company’s stockholders. Pursuant to a voting
agreement, (the “Voting Agreement”), the Gerber Trust
and Schoenberger Trust will continue to vote all shares of Voting
Stock owned by them to elect each of Messrs. Gerber and
Schoenberger to the Board along with other designees mutually
agreed upon. By virtue of the Voting Agreement, Messrs. Gerber and
Schoenberger will represent 684,839,362, or 59.61% of the Voting
Stock when voting on director nominees.
(7)
Mr. Neibert is the
Chief Financial Officer of the Company and a member of the Board.
Mr. Neibert owns an aggregate 877,322 shares in his own name, and
for the purposes hereof, includes 676 shares of common stock held
in the name of his minor child included in the calculation. Mr.
Neibert’s total beneficial ownership constitutes 0.08% of the
outstanding shares of Common Stock which percentage is based on
1,148,923,323 outstanding shares of Common Stock (giving effect to
the conversion of all Series B Preferred Stock).
(8)
Mr. Gonzalez is a
member of the Board of the Company. Mr. Gonzalez and Mr. Hansu Kim
are 50% partners and share voting and dispositive power in Gonzalez
& Kim, a California general partnership, which holds 350,086
shares of Series B Preferred Stock (which after giving effect to
their conversion would total 7,001,720 shares of Common Stock)
constituting 0.61% of the outstanding shares of Common Stock which
percentage is based on 1,148,923,323 outstanding shares of Common
Stock (giving effect to the conversion of all Series B Preferred
Stock).
(9)
The Gerber Family
Irrevocable Trust (the “GFI Trust”) holds the shares
directly for the benefit of minor children; the trust is managed by
Commonwealth Trust Company, as Corporate Trustee, and Jeremy Gerber
as Trustee. The GFI Trust owns an aggregate 168,706,288 shares of
Common Stock constituting 14.68% of the outstanding shares of
Common Stock which percentage is based on 1,148,923,323 outstanding
shares of Common Stock (giving effect to the conversion of all
Series B Preferred Stock).
(10)
The Sheila and
Eliot Gerber, as joint tenants, own an aggregate 106,308,072 shares
of Common Stock constituting 9.25% of the outstanding shares of
Common Stock which percentage is based on 1,148,923,323 outstanding
shares of Common Stock (giving effect to the conversion of all
Series B Preferred Stock).
(11)
Percentage
calculated as a group based on 1,148,923,323 outstanding shares of
Common Stock (giving effect to the conversion of all 13,108,474
Series B Preferred Stock outstanding).
INTERESTS OF CERTAIN PERSONS IN MATTERS TO BE ACTED
UPON
The
Company’s current President, Chief Executive Officer and
Chairman of the Board, Nicholas Gerber (“Mr. Gerber”),
has an indirect interest in the Actions. Mr. Gerber is a
beneficiary and trustee of the Nicholas and Melinda Gerber Living
Trust which holds 313,549,040 shares of the Company’s common
stock and 11,517,552 shares of the Company’s Series B
Preferred Stock. As a result of Mr. Gerber’s discretion over
the voting power of shares held by the Nicholas and Melinda Gerber
Living Trust and his personal securities holdings, Mr. Gerber
beneficially owns 313,549,040 shares of the Company’s common
stock and 11,517,552 shares of the Company’s Series B
Preferred Stock, each of which is convertible into twenty (20)
shares of common stock and, prior to such conversion, is eligible
to cast 20 votes per share of preferred stock. Because of the level
of Mr. Gerber’s stock ownership, the Amended Charter will
result in Mr. Gerber controlling a majority of the voting power of
the Company’s Board and a larger portion of the voting power
of the Board than he had under the Former Charter. In addition,
certain provisions in the Amended and Restated Bylaws will have the
effect of discouraging certain coercive takeover practices and
inadequate takeover bids, which will encourage persons seeking to
acquire control of the Company to negotiate first with the Board,
including Mr. Gerber. Thus, Mr. Gerber has an interest in the
Actions.
The
Company’s current director, Scott Schoenberger (“Mr.
Schoenberger”), has an indirect interest in the Actions. Mr.
Schoenberger is a beneficiary of and has dispositive voting control
over The Schoenberger Family Trust, which holds 13,333,334 shares
of Company’s common stock and 1,081,717 shares of the
Company’s Series B Preferred Stock. Including shares held
individually, Mr. Schoenberger beneficially owns 119,304,945 shares
of the Company’s common stock and 1,081,717 shares of the
Company’s Series B Preferred Stock, each of which is
convertible into twenty (20) shares of common stock and, prior to
such conversion, is eligible to cast 20 votes per share of
preferred stock. Because of the level of Mr. Schoenberger’s
stock ownership, the Amended Charter will result in Mr.
Schoenberger controlling a larger portion of the voting power of
the Board than he had under the Former Charter. In addition,
certain provision in the Amended and Restated Bylaws will have the
effect of discouraging certain coercive takeover practices and
inadequate takeover bids, which will encourage persons seeking to
acquire control of the Company to negotiate first with the Board,
including Mr. Schoenberger. Thus, Mr. Schoenberger has an interest
in the Actions.
Other
than the foregoing, no director, executive officer, associate of
any director, executive officer or any other person has any
substantial interest, direct or indirect, in the
Actions.
NO DISSENTERS’ RIGHTS
Under
the Nevada Revised Statutes, dissenting stockholders, if any, are
not entitled to appraisal rights with respect to the
Actions, and we will not
independently provide our stockholders with any such
right.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We are
subject to the Exchange Act and are required to file reports,
information statements and other information with the SEC regarding
our business, financial condition and other matters pursuant to and
in accordance with the Exchange Act. You may read and copy the
reports, information statements and other information filed by us
at the public reference facilities maintained by the SEC at 100 F
Street, NE, Room 1580, Washington, DC 20549. Please call the SEC at
1-800-SEC-0330 for additional information about the public
reference facilities. The reports, information statements and other
information filed with the SEC are also available to the public
over the internet at http://www.sec.gov, the internet website of
the SEC. All inquiries regarding our Company should be addressed to
our corporate counsel at
Eversheds Sutherland
(US) LLP, 700 6
th
Street NE,
Suite 700, Washington, D.C. 20002, Attn: Cynthia M. Krus,
Esq
.
CONCLUSION
As a
matter of regulatory compliance, we are sending you this
Information Statement which describes the Actions and their effect
on the Company. Your consent to the Actions is not required and not
being solicited in connection with the Actions. The Information
Statement is intended to provide our shareholders with information
required by the rules and regulations of the Exchange
Act.
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Exhibits
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Description
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Exhibit A
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Form of
Amended and Restated Articles of Incorporation of Concierge
Technologies, Inc.
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Exhibit B
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Form of
Amended and Restated Bylaws of Concierge Technologies,
Inc.
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BY ORDER OF THE COMPANY’S BOARD OF DIRECTORS
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By:
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/s/
Nicholas
Gerber
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Nicholas
Gerber
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President,
Chief Executive Officer and Chairman of the
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Board
of Directors
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EXHIBIT A
CONCIERGE TECHNOLOGIES, INC.
AMENDED AND RESTATED ARTICLES OF INCORPORATION
CONCIERGE
TECHNOLOGIES, INC. a Nevada Corporation (the
“Corporation”), having its principal office in the
State of Nevada, hereby certifies:
FIRST:
Pursuant to Chapter 78,
Title 7 of Nevada Revised Statutes, the Corporation desires to, and
does hereby, amend and restate its charter as currently in effect
and as hereinafter amended.
SECOND:
This amendment and
restatement of the charter of the Corporation has been approved by
the directors and stockholders.
THIRD
: The following provisions
are all the provisions of the charter currently in effect and as
hereinafter amended and restated:
Article I.
Name
The
name of the corporation is:
Concierge
Technologies, Inc.
Article II.
Principal
Office and Registered Agent
Offices
for the transaction of any business of the Corporation and where
meetings of the Board of Directors and of the stockholders may be
held, may be established and maintained in Nevada or any other
state, territory or possession of the United States of America or
in any foreign country.
Article III.
Purpose
The
nature of the business and objects and purposes proposed to be
transacted, promoted or carried on by the Corporation is to
transact any lawful activity or business as the Board of Directors
may from time to time direct. The period of duration of the
Corporation is perpetual.
Article IV.
Stock
Section 4.1.
Authorized Shares
. The amount of total authorized stock of
the Corporation is nine hundred fifty million (950,000,000) shares,
of which nine hundred million (950,000,000) shares shall be
designated common stock with a par value of $0.001 per share (the
“Common Stock”), and fifty million (50,000,000) shares
shall be designated Preferred Stock, with a par value of $0.001 per
share (the “Preferred Stock”).
Section 4.2.
Common Stock
. Each share of
Common Stock shall entitle the holder thereof to one vote. The
Board of Directors may reclassify any unissued shares of Common
Stock from time to time into one or more classes or series of
stock.
Section 4.3.
Preferred Stock
. The preferred
stock may be issued in series. The Board of Directors is authorized
to determine the designation of each series of preferred stock, to
fix the number of shares of each series, to determine or alter the
rights, preferences, privileges and restrictions granted to or
imposed upon any wholly unissued series, and to increase the number
of shares of any series subsequent to the issue of shares of such
series.
(a)
The Corporation has
designated a series of its Preferred Stock named Series A
Convertible, Voting, Preferred Stock consisting of 5,000,000
shares, each of which shares shall be convertible into 5 shares of
the Corporation’s Common Stock and, until converted, shall
have 5 votes on all matters brought before the stockholders for a
vote. A holder of shares of this series may no exercise his
conversion rights until after 270 days after the date of issuance
of the shares and, if exercised, must be exercised with regard to
all shares of this series held by such holder; and, provided
further, that no conversion of the shares shall take place until
the Corporation shall have amended its Articles of Incorporation to
provide an increase in the number of its authorized shares of
Common Stock at lease sufficient to allow all shares of this series
to be converted into Common Stock; and
(b)
The Corporation has
designated a series of its Preferred Stock named Series B
Convertible, Voting, Preferred Stock consisting of 45,000,000
shares, each of which shares shall be convertible into 20 shares of
the Corporation’s Common Stock and, until converted, shall
have 20 votes on all matters brought before the stockholders for a
vote. A holder of this series may not exercise his conversion
rights until after 270 days after the date of issuance of the
shares and, if exercised, must be exercised with regard to all
shares of this series held by such holder; and, provided further,
that no conversion of the shares shall take place until the
Corporation shall have amended its Articles of Incorporation to
provide an increase in the number of its authorized shares of
Common Stock at least sufficient to allow all shares of this series
to be converted into Common Stock.
Section4.4.
Classified or Reclassified
Shares
. Prior to issuance of classified or reclassified
shares of any class or series, the Board of Directors by resolution
shall: (a) designate that class or series to distinguish it from
all other classes and series of stock of the Corporation; (b)
specify the number of shares to be included in the class or series;
(c) set or change, subject to the express terms of any class or
series of stock of the Corporation outstanding at the time, the
preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends or other distributions,
qualifications and terms and conditions of redemption for each
class or series; and (d) cause the Corporation to file a
certificate of designation with the Nevada Secretary of State. Any
of the terms of any class or series of stock set or changed
pursuant to clause (c) of this Section 4.4 may be made dependent
upon facts or events ascertainable outside the charter (including
determinations by the Board of Directors or other facts or events
within the control of the Corporation) and may vary among holders
thereof, provided that the manner in which such facts, events or
variations shall operate upon the terms of such class or series of
stock is clearly and expressly set forth in a certificate of
designation filed with the Nevada Secretary of State.
Article V.
Directors
Section 5.1.
Number and Qualifications
. The
members of the governing board of the Corporation shall be styled
Directors, and the initial number thereof shall be one; provided
that, as of the effective date of this amendment and restatement of
the charter of the Corporation, the number of Directors is four
(4). The number of Directors may from time to time be increased or
decreased in such manner as shall be provided by the Bylaws of the
Corporation. Directors need not be stockholders, but shall be full
of age, and at least one shall be a citizen of the United
States.
Section 5.2.
Election of Directors
. Except as otherwise provided in the
Bylaws of the Corporation, directors shall be elected by the
affirmative vote of the holders of a plurality of the shares of
stock outstanding and entitled to vote thereon.
Section 5.3.
Voting
. The action of the
majority of the Director Votes (as defined in Section 5.5 of this
Article V) represented at a meeting at which a quorum is present
shall be the action of the Board of Directors, unless the
concurrence of a greater proportion is required for such action by
applicable statute. If enough Director Votes have withdrawn from a
meeting to leave less than a quorum but the meeting is not
adjourned, the action of the majority of the Director Votes still
present at such meeting shall be the action of the Board of
Directors, unless the concurrence of a greater proportion is
required for such action by applicable statute.
Section 5.4.
Quorum
. The presence in person
or by proxy of directors entitled to cast a majority of the
Director Votes entitled to be cast shall constitute a quorum at any
meeting of the Board of Directors.
Section 5.5.
Director Votes
. On any matter
before the Board of Directors, the aggregate number of votes that
may be cast by the directors on a given matter (collectively, the
“Director Votes”) shall be determined as
follows:
(a)
Any director who
does not own common stock or preferred stock of the Corporation
shall be entitled to one (1) Director Vote;
(b)
Any director who
owns common stock or preferred stock in the Corporation shall be
entitled to cast a number of Director Votes equal to the result of
(i) multiplied by (ii), where: (i) is equal to the percentage
determined by dividing (A) the number of shares of common stock and
preferred stock beneficially owned by such director (or any
“group” of which such director is a member, as defined
by Section 13(d) of the Securities Exchange Act of 1934, as
amended), on an as-converted, fully diluted basis, by (B) the
number of issued and outstanding shares of common stock and
preferred stock of the Corporation, on an as-converted, fully
diluted basis; and (ii) is equal to the total number of Director
Votes, as finally determined by pursuant to this Section
5.5.
(c)
Subject to the
following subsection 5.5(d), any fraction of a Director Vote
resulting from the foregoing calculation shall be rounded
down.
(d)
If application of
the foregoing calculation results in a director having less than
one Director Vote, then such director shall, for purposes of this
Section 5.5, be treated as a director who does not own any common
stock or preferred stock of the Corporation and, therefore, shall
be entitled to cast one (1) Director Vote pursuant to subsection
5.5(a).
(e)
The determination
of Director Votes entitled to be cast at a meeting of the Board of
Directors shall be determined as of the record date established for
such meeting in accordance with Section 5.6 below and shall be
determined in good faith based on the information known to the
Board of Directors as of such time. For the avoidance of doubt, the
Board of Directors may rely on publicly available information
relating to ownership of the Corporations capital stock unless the
Board of Directors has reason to know that such information has
materially changed since the record date (in which case the
determination of Director Votes shall be determined in good faith
by the Board of Directors taking into account the more current
information. Prior to the taking of a vote at any meeting of
directors, the determination of Director Votes eligible to be cast
at such meeting (and, if different, on any particular matter) shall
be announced to the directors present at such meeting.
(f)
In the event the
Corporation’s common and/or preferred stock becomes listed
for trading on the New York Stock Exchange, Nasdaq Stock Market or
any other national securities exchange, the provisions of the
foregoing subsections 5.5 (a), (b), (c) and (d) shall be suspended
for any period during which (i) the Corporation is required to have
a board comprised of a majority of directors that are
“independent” as defined under the rules of such
national securities exchange or (ii) the provisions of the sections
noted above are prohibited under any law or regulation applicable
to the Corporation, including the listing standards of any national
securities exchange applicable to the Corporation.
(g)
During any period
in which the provisions of subsections 5.5 (a), (b), (c) and (d)
are suspended pursuant to the foregoing subsection 5.5(e), each
director shall have one vote on all matters before the Board of
Directors.
Section 5.6.
Fixing of Record Date for Board
Voting
. The record date for the purpose of determining the
number of Director Votes that each director is entitled to cast
shall be (a) the tenth (10
th
) day prior to any
regular meeting of the Board of Directors; or (b) the date on which
notice is provided of any special meeting of the Board of
Directors.
Article VI.
Amendments
The
Corporation reserves the right from time to time to make any
amendment to its charter, now or hereafter authorized by law,
including any amendment altering the terms or contract rights, as
expressly set forth in the charter, of any shares of outstanding
stock. All rights and powers conferred by the charter on
stockholders, directors and officers are granted subject to this
reservation. Any amendment to this Article VI shall be valid only
if declared advisable by the Board of Directors and approved by the
affirmative vote of a majority of all the votes entitled to be cast
on the matter.
[remainder of the
page intentionally left blank]
IN
WITNESS WHEREOF, the Corporation has caused these Amended and
Restated Articles of Incorporation to be signed in its name and on
its behalf by its Chairman, President and Chief Executive Officer
and attested to by its Secretary as of the [ ]th day of []
2017.
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CONCIERGE
TECHNOLOGIES, INC.
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By:
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Nicholas
D. Gerber
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Chairman,
President and Chief Executive Officer
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Attest:
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Carolyn
Yu
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Secretary
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THE
UNDERSIGNED, Nicholas D. Gerber, Chairman, President and Chief
Executive Officer of Concierge Technologies, Inc., who executed on
behalf of said corporation the foregoing Amended and Restated
Articles of Incorporation, of which this certificate is made a
part, hereby acknowledges, in the name and on behalf of said
corporation, the foregoing Amended and Restated Articles of
Incorporation to be the corporate act of said corporation and
further certifies that, to the best of his knowledge, information,
and belief, the matters and facts set forth herein with respect to
the approval thereof are true in all material respects, under
penalties of perjury.
EXHIBIT B
AMENDED AND RESTATED BYLAWS
OF
CONCIERGE TECHNOLOGIES, INC.
(a
Nevada Corporation)
Article
I. Offices
Section 1.1 Principal Office
.
The Board of Directors shall fix the location of the principal
office of the Corporation at any place within or outside the State
of Nevada.
Section 1.2 Registered Office
.
The registered office of the Corporation required by law to be
maintained in Nevada may be, but need not be, the same as the
principal office. The Board of Directors may change the address of
the registered office from time to time.
Section 1.3 Other Offices
.
Branch or subordinate offices may be established at any time and at
any place by the Board of Directors.
Article
II. Stockholders’ Meetings
Section 2.1 Annual
Meetings
.
(a)
The annual meeting
of the stockholders of the Corporation shall be held within five
months after the close of the fiscal year of the Corporation and
within fifteen months of the last annual meeting of the
stockholders of the Corporation at the principal office of the
Corporation, or at any other place within or without the State of
Nevada as determined by the Board of Directors and set forth in the
notice of that meeting, and at such time and date as may be
determined by the Board of Directors and set forth in the notice of
that meeting. The business to be transacted at the annual meeting
of the stockholders shall be the election of directors and such
other business as may be properly brought before the
meeting.
(b)
If the election of
directors shall not be held at the annual meeting, or at any
adjournment of that meeting, the Board of Directors shall call a
special meeting of the stockholders as soon as possible thereafter.
At this meeting the election of directors shall take place, and the
election and any other business transacted shall have the same
force and effect as if taken at an annual meeting duly called and
held.
Section 2.2 Special Meetings
.
Special meetings of the stockholders may be called at any time by
the Board of Directors, the Chair of the Board of Directors or the
President, and shall be called by the President or the Secretary at
the written request of the holders of fifteen percent (15%) or more
of the shares then outstanding and entitled to vote thereat, or as
otherwise required by law. Business transacted at any special
meeting of the stockholders shall be limited to the purposes stated
in the notice for such meeting. If a special meeting is called by
anyone other than the Board of Directors, the person or persons
calling the meeting shall make a request in writing, delivered
personally or sent by registered mail, to the Chair of the Board of
Directors or the President, Vice President, or Secretary,
specifying the time and date of the meeting (which is not less than
35 nor more than 60 days after receipt of the request) and the
general nature of the business proposed to be
transacted.
Section 2.3 Notice of
Meetings
.
(a)
Notice, Generally
. Whenever
stockholders are required or permitted to take action at a meeting,
notice, in writing and signed by an officer of the Corporation,
shall be given to each stockholder of record entitled to vote at
the meeting stating the place, date and hour of the meeting, the
purposes of the meeting and the means of remote communication, if
any, by which the stockholders and proxy holders may be deemed to
be present and vote at such meeting. Such notice shall be given in
person, by mail or by any other means permitted by applicable law,
not less than ten (10) nor more than sixty (60) days before the
meeting. If mailed, it must be directed to the stockholder at the
address last shown on the records of the Corporation, and upon the
mailing of any such notice the service thereof is
complete.
(b)
Notice to Non-Record Stockholders; Adjourned
Meetings
. Notice of any meeting need not be given to any
person who may become a stockholder of record after the mailing of
such notices and prior to the meeting. Any meeting of the
stockholders may adjourn from time to time to reconvene at the same
or some other place. When a meeting is adjourned to another time or
place, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which the
adjournment is taken, and at the adjourned meeting any business may
be transacted that might have been transacted at the meeting as
originally called. If, however, a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the meeting as of
the new record date.
(c)
Waiver of Notice
. A stockholder may
waive the notice of meeting by attendance, either in person or by
proxy, at the meeting, or by so stating in writing, either before
or after the meeting, provided, however, that attendance at a
meeting for the express purpose of objecting, at the beginning of
the meeting, that the meeting was not lawfully called or convened
shall not constitute a waiver of notice.
Section 2.4 Business Conducted at
Meetings
. At a meeting of the stockholders, only such
business shall be conducted as shall have been properly brought
before the meeting. To be properly brought before a meeting,
business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Chairman of
the Board, the President or the Board of Directors, (b) otherwise
properly brought before the meeting by or at the direction of the
Board of Directors, or (c) otherwise properly brought before the
meeting by a stockholder. In addition to any other applicable
requirements, for business to be properly brought before a meeting
called by a stockholder, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To
be timely, a stockholder’s notice must be received at the
principal executive offices of the Corporation not less than 120
days before the date of the Corporation’s proxy statement
released to stockholders in connection with the previous
year’s annual meeting or as otherwise provided in the
Corporation’s proxy materials for the most recent meeting of
stockholders. However, if the Corporation did not hold an annual
meeting the previous year, or if the date of the current annual
meeting has been changed by more than 30 days from the date of the
previous year’s meeting, then the deadline is a reasonable
time before the Corporation begins to print and send its proxy
materials. A stockholder’s notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before
the meeting (a) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting
such business at the meeting, (b) the name and address, as they
appear on the Corporation’s books, of the stockholder
proposing such business, (c) the class and number of shares of the
Corporation which are beneficially owned by the stockholder, and
(d) any material interest of the stockholder in such business.
Notwithstanding anything in the Bylaws to the contrary, no business
shall be conducted at a meeting except in accordance with the
procedures set forth in this Section 2.4; provided, however, that
nothing in this Section 2.4 shall be deemed to preclude discussion
by any stockholder of any business properly brought before the
meeting in accordance with said procedure. The Chairman of the
meeting shall, if the facts warrant, determine and declare to the
meeting that business was not properly brought before the meeting
in accordance with the provisions of this Section 2.4, and if he or
she should so determine, he or she shall so declare to the meeting.
Any such business not properly brought before the meeting shall not
be transacted. Nothing in this Section 2.4 shall affect the right
of a stockholder to request inclusion of a proposal in the
Corporation’s proxy statement to the extent that such right
is provided by an applicable rule of the Securities and Exchange
Commission (“SEC”).
Section 2.5 Nominations of
Directors
.
(a)
In addition to any
other applicable requirements, only persons who are nominated in
accordance with the following procedures shall be eligible for
election as directors. Nominations of persons for election to the
Board of Directors of the Corporation may be made at a meeting of
stockholders by or at the direction of the Board of Directors, by
any nominating committee or person appointed by the Board of
Directors or by any stockholder of the Corporation entitled to vote
for the election of directors at the meeting who complies with the
notice procedures set forth in this Section 2.5. Such nominations,
other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to
the Secretary of the Corporation. To be timely, a
stockholder’s notice must be delivered to or mailed and
received at the principal executive offices of the Corporation, not
less than 45 days nor more than 75 days prior to the date on which
the Corporation first mailed its proxy materials for the previous
year’s annual meeting of stockholders (or the date on which
the Corporation mails its proxy materials for the current year if
during the prior year the Corporation did not hold an annual
meeting or if the date of the annual meeting was changed more than
30 days from the prior year) or as otherwise provided in the proxy
statement for the prior year’s meeting at which directors
were elected. Such stockholder’s notice shall set forth (a)
as to each person whom the stockholder proposes to nominate for
election or re-election as a director, (i) the name, age, business
address and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class and number
of shares of the Corporation which arebeneficially owned by the
person, (iv) the reasons why such person is qualified to serve as a
director, and (v) any other information relating to the person that
is required to be disclosed in solicitations for proxies for
election of directors pursuant to Rule 14a under the Securities
Exchange Act of 1934; and (b) as to the stockholder giving the
notice, (i) the name and record address of the stockholder, and
(ii) the class and number of shares of the Corporation which are
beneficially owned by the stockholder. The Corporation may require
any proposed nominee to furnish such other information as may
reasonably be required by the Corporation to determine the
eligibility of such proposed nominee to serve as a director of the
Corporation. No person shall be eligible for election as a director
of the Corporation unless nominated in accordance with the
procedures set forth herein. These provisions shall not apply to
nomination of any persons entitled to be separately elected by
holders of preferred stock. The Chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the foregoing procedure,
and if he should so determine, he shall so declare to the meeting
and the defective nomination shall be disregarded.
(b)
In the event that a
person is validly designated as a nominee in accordance with this
Section 2.5 and shall thereafter become unable or willing to stand
for election to the Board of Directors, the Board of Directors or
the stockholder who proposed such nominee, as the case may be, may
designate a substitute nominee.
(c)
If the Chairman of
the Election Meeting determines that a nomination was not made in
accordance with the foregoing procedures, such nomination shall be
void.
Section 2.6 Closing of Transfer Books;
Record Date
.
(a)
In lieu of closing
the share records of the Corporation, the Board of Directors may
fix, in advance, a date not more than sixty (60) days or less than
ten (10) days prior to a meeting of the stockholders as the record
date for the determination of stockholders entitled to receive
notice of, or to vote at, any meeting of the stockholders, or to
consent to any proposal without a meeting, or for the purpose of
determining stockholders entitled to receive payment of any
dividends, or allotment of any rights, or for the purpose of any
other action. If no record date is fixed, the record date for the
determination of stockholders entitled to notice of or to vote at a
meeting of the stockholders shall be at the close of business on
the day next preceding the day on which notice is given, or, if no
notice is given, the business day on the day next preceding the day
on which the meeting is held; the record date for determining
stockholders for any other purpose shall be at the close of
business on the day on which the resolution of the directors
relating thereto is adopted.
(b)
When a
determination of stockholders entitled to notice of or to vote at
any meeting has been made as provided in this Section 2.6, except
as otherwise provided by law, this determination shall apply to any
adjournment of the meeting unless the Board of Directors fixes a
new record date for the adjourned meeting. Notwithstanding the
foregoing, the Board of Directors must fix a new record date if the
meeting is adjourned to a date more than sixty (60) days after the
date set for the original meeting.
Section 2.7 List of
Stockholders
. A complete list of the stockholders of the
Corporation entitled to vote at the ensuing meeting, arranged in
alphabetical order, and showing the address of and number of shares
owned by each stockholder shall be prepared by the Secretary or
other officer of the Corporation having charge of the stock
transfer books. This list shall be kept on file at the principle
office of the Corporation and shall be subject to inspection during
the usual business hours. This list shall also be available at the
meeting and shall be open to inspection by any stockholder at any
time during the meeting. The original Stock Transfer Books shall be
prima facie evidence as to who are the stockholders entitled to
examine the list or to vote at any meeting of the stockholders.
Failure to comply with the requirements of this Section 2.7 shall
not affect the validity of any action taken at any meetings of the
stockholders.
Section 2.8 Quorum; Adjournment upon
Lack of a Quorum
.
(a)
Except as otherwise
provided by law, the Articles of Incorporation or these Bylaws, a
quorum at all meetings of the stockholders shall consist of the
holders of a majority of the voting power of all outstanding shares
of stock entitled to vote at the meeting present in person or by
proxy. If voting by a class or series of stockholders is required
for a matter, a majority of the voting power of that class or
series that is present in person or by proxy constitutes a quorum
for the purposes of transacting business with regards to that
matter. The withdrawal of any stockholder after commencement of a
meeting shall have no effect on the existence of a quorum after a
quorum has been initially established at such meeting.
(b)
Despite the absence
of a quorum at any meeting of the stockholders, the stockholders,
by a majority of the votes cast by holders of shares of stock
entitled to vote present at the meeting in person or by proxy, may
adjourn the meeting. Upon reconvening such adjourned meeting, and
when a quorum is present, any business may be transacted which
might have been transacted at the meeting as originally
called.
Section 2.9 Voting;
Proxies
.
(a)
Except as otherwise
provided by law, in the Articles of Incorporation or in these
Bylaws or by the rules and regulations of any stock exchange
applicable to the Corporation, any corporate action to be taken by
a vote of the stockholders shall be decided by the affirmative vote
of a majority of the voting power of shares of stock present in
person or by proxy at a meeting with a quorum and entitled to vote
thereon. Except as otherwise provided in the Articles of
Incorporation, each share of stock entitled to vote at a meeting of
the stockholders shall have, as to each matter submitted to a vote,
one vote, whether voted in person or by proxy.
(b)
A stockholder
entitled to vote at a meeting of the stockholders may vote his or
her shares through a proxy appointed by a written instrument signed
by the stockholder or by a duly authorized attorney-in-fact of the
stockholder and delivered to the Secretary of the Corporation. No
proxy shall be valid after six (6) months from the date of its
execution unless a longer period is expressly provided therein
(which length may not exceed seven (7) years). A stockholder may
revoke any proxy that is not irrevocable by attending the meeting
and voting in person or by delivering to the Secretary a revocation
of the proxy or by delivering a new proxy bearing a later
date.
Section 2.10 Action of Stockholders by
Written Consent
. Any action required or permitted to be
taken at a meeting of the stockholders may be taken without a
meeting if, before or after the action, a written consent thereto
is signed by stockholders holding at least a majority of the voting
power of shares of stock, except that if a different proportion of
voting power is required by law, the Articles of Incorporation or
these Bylaws for such an action at a meeting, then written consent
by that proportion is required.
Section 2.11 Conduct of
Meetings
. The Board of Directors may adopt by resolution
such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. At each meeting of
stockholders the Chair of the Board of Directors, or in the absence
of the Chair of the Board of Directors, the President, or in
absence of the President, a chairman of the meeting to be selected
by a majority of the stockholders entitled to vote at the meeting
who are present in person or by proxy shall preside over the
meeting. Except to the extent inconsistent with such rules and
regulations as are adopted by the Board of Directors, the person
presiding over any meeting of the stockholders shall have the right
and authority to convene and to adjourn the meeting, to establish
an agenda for the meeting, to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such
person, are appropriate for the proper conduct of the meeting. The
Secretary, or in his or her absence, one of the Assistant
Secretaries, shall act as secretary of the meeting.
Section 2.12 Inspectors
. The
Board of Directors or the chair of the meeting may appoint, before
or at the meeting, one or more inspectors for the meeting and any
successor thereto. The inspectors, if any, shall (i) determine the
number of shares of stock represented at the meeting, in person or
by proxy and the validity and effect of proxies, (ii) receive and
tabulate all votes, ballots or consents, (iii) report such
tabulation to the chair of the meeting, (iv) hear and determine all
challenges and questions arising in connection with the right to
vote, and (v) do such acts as are proper to conduct the election or
vote with fairness to all stockholders. Each such report shall be
in writing and signed by him or her or by a majority of them if
there is more than oneinspector acting at such meeting. If there is
more than one inspector, the report of a majority shall be the
report of the inspectors. The report of the inspector or inspectors
on the number of shares represented at the meeting and the results
of the voting shall be prima facie evidence thereof.
ARTICLE
III. DIRECTORS
Section 3.1 Number; Qualification;
Election; Term; Duties and Powers
.
(a)
Number and Qualification
. The property,
affairs and business of the Corporation shall be managed by a Board
of Directors. The current number of directors on the Board of
Directors is four (4). The size of the Board of Directors may be
changed by resolution of the Board of Directors to consist of no
less than one (1) director and no more than [twelve] ([12])
directors. Each director shall be at least eighteen (18) years of
age, but directors need not be stockholders of the
Corporation.
(b)
Election and Term
. Except as otherwise
provided in these Bylaws, directors will be elected by a majority
of the voting power of shares of stock entitled to vote thereon
present in person or by proxy at an annual meeting of the
stockholders with a quorum present. However, in the event the
Corporation’s common and/or preferred stock becomes listed
for trading on the New York Stock Exchange, Nasdaq Stock Market or
any other national securities exchange, directors shall be elected
by a plurality of the voting power of shares entitled to vote
thereon for any period during which the Corporation is required to
have a board comprised of a majority of directors that are
“independent” as defined under the listing rules of
such national securities exchange. Each director shall serve for a
term of one year, provided that each director shall continue to
serve as a director until his or her successor shall be duly
elected and qualified, or until his or her prior death, resignation
or removal.
(c)
Vacancies and Additional Directors
. Any
vacancy to be filled by reason of death, resignation,
disqualification or removal from office of any director, or
otherwise, or if any new directorship is created by an increase in
the authorized number of directors may only be filled by a majority
of votes eligible to be cast by the directors in office, though
less than a quorum, but only for a term continuing until the next
election of directors by the stockholders and until the due
election and qualification of such director’s
successor.
(d)
Duties and Powers
. The Board of
Directors shall be responsible for the control and management of
the affairs, property and interests of the Corporation and may
exercise all powers of the Corporation, except as are otherwise
expressly conferred upon or reserved to the stockholders by law,
the Articles of Incorporation or these Bylaws.
Section 3.2 Meetings of the Directors;
Notice; Quorum and Action
.
(a)
Regular Meetings
. Regular meetings of
the Board of Directors may be held without notice at such times and
at such places, within or without the State of Nevada, as shall
from time to time be determined by the Board of Directors. The
Board of Directors need not receive notice of regular
meetings.
(b)
Special Meetings
. Special meetings of
the Board of Directors may be held at any time or place, within or
without the State of Nevada, whenever called by the Chair of the
Board, the President or a Vice President or by any two or more
directors then serving on the Board of Directors. Notice of special
meetings of the Board of Directors shall be mailed directly to each
Director, addressed to him at his residence or usual place of
business at least four (4) days before the day on which the
meeting is to be held, or shall be sent to him at such place by
telephone, electronic mail or facsimile or shall be delivered to
him personally not later than the day before the day on which the
meeting is to be held. A notice or waiver of notice, except as
expressly required herein need not specify the purpose of the
meeting. A director may waive notice of a meeting of the Board of
Directors by attendance at the meeting or by so stating in writing,
either before or after the meeting, provided, however, that
attendance at a meeting for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business on
the grounds that the meeting has not been lawfully called or
convened shall not constitute a waiver of notice.
(c)
Quorum
. At all meetings of the Board of
Directors, the presence of a majority of the entire Board of
Directors shall constitute a quorum for the transaction of
business, except as otherwise may be provided by law or the
Articles of Incorporation. If at any meeting of the Board of
Directors there shall be less than a quorum present, a majority of
those present may adjourn the meeting from time to time without
further notice until a quorum shall have been
obtained.
(d)
Action at a Meeting of the Board of
Directors
. Except as otherwise provided by law, the Articles
of Incorporation or these Bylaws, the vote of a majority of the
directors present at any meeting at which a quorum is present shall
be the act of the Board of Directors.
(e)
Telephone Meetings
. Directors may
participate in a meeting by means of a conference telephone or
similar communications equipment if all persons participating in
the meeting can hear each other at the same time. Participation in
a meeting by these means shall constitute presence in person at the
meeting.
(f)
Action by Written Consent in Lieu of a
Meeting
. 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.
Section 3.3 Removal and Resignation of
Directors; Vacancies
.
(a)
Removal
. Any director or directors may
be removed from office, without assignment of any reason, by a vote
of not less than two thirds (2/3) of the voting power of the issued
and outstanding stock entitled to vote, or not less than two thirds
(2/3) of the class or series of stock, as the case, may be, that
elected the director or directors to be removed.
(b)
Resignation
. Any director may resign at
any time by giving written notice to the Board of Directors, the
President or the Secretary. Unless otherwise specified in such
written notice, such resignation shall take effect upon receipt
thereof by the Board of Directors, or by such officer, and
acceptance of such resignation shall not be necessary to make it
effective.
(c)
Vacancies
. Except as otherwise provided
in these Bylaws, any vacancies on the Board of Directors resulting
from death, resignation, disqualification, removal from office or
other cause may be filled by a majority vote of the remaining
directors then in office, although less than a quorum, or if only
one director remains, by that sole remaining director, and
directors so chosen shall hold office until the expiration of the
term of office of the director whom he or she has replaced or until
his or her successor is duly elected and qualified, provided,
however, that the Board of Directors may only fill a vacancy on the
Board of Directors resulting from removal by the stockholders of a
director or directors if the stockholders fail to fill such vacancy
as provided in the following sentence. The stockholders may fill
any vacancies on the Board of Directors resulting from the removal
of a director or directors at the meeting of the stockholders at
which, or by the same written consent of the stockholders by which,
as the case may be, the stockholders voted to remove the director
or directors, such vacancies to be filled by the same vote of the
stockholders as would be required to elect directors at an annual
meeting of the stockholders.
Section 3.4 Compensation
.
Directors and members of any committee of the Board of Directors
shall be entitled to any reasonable compensation for their services
as such as shall be fixed from time to time by resolution of the
Board of Directors, and shall also be entitled to reimbursement for
any reasonable expense incurred by such director in connection with
the performance of his or her duties as such. The compensation of
directors may be on any basis as determined in the resolution of
the Board of Directors. Any director receiving compensation under
this provision shall not be barred from serving the Corporation in
any other capacity and receiving reasonable compensation for such
other services.
Section 3.5 Committees
. The
Board of Directors, by resolution adopted by a majority of the
entire Board, may from time to time designate from among its
members an executive committee and such other committees, and
alternate members thereof, as they deem desirable, to serve at the
pleasure of the Board of Directors. Each committee shall consist of
at least one member of the Board of Directors, with such powers and
authority (to the extent permitted by law) as may be conferred or
authorized by resolution of the Board of Directors.
Section 3.6 Dividends
. Subject
to applicable law and the Articles of Incorporation, dividends may
be declared and paid of any funds available therefor, as often, in
such amounts, and at such time or times as the Board of Directors
may determine.
ARTICLE
IV. OFFICERS
Section 4.1 Number; Qualifications;
Election and Term of Office
.
(a)
The officers of the
Corporation shall consist of a President, a Secretary, a Treasurer,
and such other officers, including a Chair of the Board of
Directors and one or more Vice Presidents, as the Board of
Directors may from time to time deem advisable. Any officer other
than the Chair of the Board of Directors may be, but is not
required to be, a director of the Corporation. The Chair may be,
but is not required to be, an officer of the Corporation. Any two
or more offices may be held by the same person.
(b)
The officers of the
Corporation shall be elected by the Board of Directors at any
regular or special meeting of the Board of Directors or by written
consent of the Board of Directors.
(c)
Each officer shall
hold office for the term for which he or she is elected and until
such officer’s successor is elected and qualified or until
such officer’s earlier death, resignation or
removal.
Section 4.2 Resignation; Removal;
Vacancies
.
(a)
Removal
. Any officer may be removed,
either with or without cause, and a successor elected by a majority
vote of the Board of Directors at any time.
(b)
Resignation
. Any officer may resign at
any time by giving written notice of such resignation to the Board
of Directors, or to the President or the Secretary of the
Corporation. Unless otherwise specified in such written notice,
such resignation shall take effect upon receipt thereof by the
Board of Directors or by such officer, and the acceptance of such
resignation shall not be necessary to make it
effective.
(c)
Vacancies
. A vacancy in any office by
reason of death, resignation, removal, inability to act,
disqualification, or any other cause, may at any time be filled for
the unexpired portion of the term of the office by a majority vote
of the Board of Directors.
Section 4.3 Duties of Officers
.
Officers of the Corporation shall, unless otherwise provided by the
Board of Directors, each have such powers and duties as generally
pertain to their respective offices as well as such powers and
duties as may be
from
time to time be specifically conferred or imposed by the Board of
Directors. The President shall be the Chief Executive Officer of
the Corporation.
Section 4.4 Shares of Other
Corporations
. Whenever the Corporation is the holder of
shares of any other corporation, any right or power of the
Corporation as such stockholder (including attendance, acting and
voting at stockholders’ meetings and execution of waivers,
consents, proxies or other instruments) may be exercised on behalf
of the Corporation by the President, any Vice President, or such
other person as the Board of Directors may authorize.
Section 4.5 Officer
Compensation
. The compensation of all officers of the
Corporation shall be fixed by the Board of Directors. No officer
shall be ineligible to receive such compensation by reason of the
fact that he or she is a director of the Corporation receiving
compensation therefor.
ARTICLE
V. INDEMNIFICATION
Section 5.1 Indemnification
.
The Corporation shall have the power to indemnify any person made a
party to any action, suit or proceeding, by reason of the fact that
such person, his or her testator or intestate representative is or
was a director, officer or employee of the Corporation, or of any
Corporation in which he or she served as such at the request of the
Corporation, for acts that the person reasonably believed to be in
the best interests of the Corporation and, in the case of a
criminal proceeding, had no reasonable cause to believe the conduct
of that person was unlawful, against reasonable expenses, including
attorneys’ fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with the defense of such action, suit or proceedings, or
in connection with any appeal therein, except in relation to
matters as to which such person shall be adjudged in such action,
suit or proceeding, or in connection with any appeal therein that
such officer, director or employee is liable for breach of his or
her duties to the Corporation or its stockholders where such breach
involves intentional misconduct, fraud or knowing violation of
law.
Section 5.2 Other
Indemnification
. The foregoing indemnification shall not be
deemed exclusive of any other rights to which any officer or
director or employee may be entitled apart from the provisions of
this Section 5.2.
Section 5.3 Amount of
Indemnification
. The amount of indemnity to which any
officer or any director may be entitled shall be fixed by the
members of the Board of Directors not a party to such action, suit
or proceeding, except that in any case where there is no such
disinterested majority of the Board of Directors available, the
amount shall be fixed by arbitration pursuant to the then existing
rules of the American Arbitration Association.
ARTICLE
VI. SHARES OF STOCK
Section 6.1 Certificate of
Stock
.
(a)
The certificates
representing the shares of stock of the Corporation shall be in
such form as shall be adopted by the Board of Directors, and shall
be numbered and registered in the order issued. Such certificates
shall bear the holder’s name and the number of shares, and
shall be signed by (i) the Chair of the Board of Directors, the
President or a Vice President, and (ii) the Secretary or Treasurer,
or any Assistant Secretary or Assistant Treasurer, and shall bear
the corporate seal. Where any certificate is manually signed by a
transfer agent or a transfer clerk and by a registrar, the
signatures of the officers upon that certificate may be facsimiles,
engraved or printed. In case any officer who has signed or whose
facsimile signature has been placed upon any certificate shall have
ceased to be an officer before the certificate is issued, it may be
issued by the Corporation with the same effect as if that officer
had not ceased to be so at the time of its issue.
(b)
No certificate
representing shares shall be issued until the full amount of
consideration therefor has been paid, except as otherwise permitted
by law.
(c)
To the extent
permitted by law, the Board of Directors may authorize the issuance
of certificates for fractions of a share which shall entitle the
holder to exercise voting rights, receive dividends and participate
in liquidating distributions, in proportion to the fractional
holdings; or it may authorize the payment in cash of the fair value
of fractions of a share as of the time when those entitled to
receive such fractions are determined; or it may authorize the
issuance, subject to such conditions as may be permitted by law, of
scrip in registered or bearer form over the signature of an officer
or agent of the Corporation, exchangeable as therein provided for
full shares, but such scrip shall not entitle the holder to any
rights of a stockholder, except as therein provided.
Section 6.2 Transfers of
Shares
.
(a)
Transfers of shares
of stock of the Corporation shall be made on the stock records of
the Corporation only by the holder of record thereof, in person or
by his duly authorized attorney, upon surrender for cancellation of
the certificate or certificates representing such shares, with an
assignment or power of transfer endorsed thereon or delivered
therewith, duly executed, with such proof of the authenticity of
the signature and of authority to transfer and of payment of
transfer taxes as the Corporation or its agents may
require.
(b)
The Corporation
shall be entitled to treat the holder of record of any share or
shares of stock of the Corporation as the absolute owner thereof
for all purposes and, accordingly, shall not be bound to recognize
any legal, equitable or other claim to, 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 expressly
provided by law.
Section 6.3 Transfer and Registry
Agents
. The Corporation may from time to time maintain one
or more transfer offices or agents and registry offices or agents
at such place or places as may be determined from time to time by
the Board of Directors.
Section 6.4 Lost or Destroyed
Certificates
. The holder of any certificate representing
shares of stock of the Corporation shall immediately notify the
Corporation of any loss or destruction of the certificate
representing the same. The Corporation may issue a new certificate
in the place of any certificate theretofore issued by it alleged to
have been lost or destroyed, and the Board of Directors, in its
discretion may require the owner of the lost, stolen or destroyed
certificate, or his or her legal representative, (a) to produce
such evidence of loss or destruction as the Board of Directors may
require, and/or (b) to give the Corporation a bond in such sum as
the Board of Directors may reasonably direct, and with such surety
or sureties as may be satisfactory to the Board of Directors, to
indemnify the Corporation against any claims, loss, liability or
damage it may suffer on account of the issuance of the new
certificate. A new certificate may be issued without requiring any
such evidence or bond when, in the judgment of the Board of
Directors, it is proper so to do.
ARTICLE
VII. FISCAL YEAR
The
fiscal year of the Corporation shall be fixed by the Board of
Directors from time to time in accordance with applicable
law.
ARTICLE
VIII. CORPORATE SEAL
The
corporate seal for the Corporation, if any, shall be in such form
as shall be approved from time to time by the Board of
Directors.
ARTICLE
IX. GENERAL CORPORATE MATTERS
Section 9.1 Executing Corporate
Contracts and Instruments
. Except as otherwise provided in
the articles or in these Bylaws, the Board of Directors by
resolution may authorize any officer, officers, agent, or agents to
enter into any contract or to execute any instrument in the name of
and on behalf of the Corporation. This authority may be general or
it may be confined to one or more specific matters. No officer,
agent, employee, or other person purporting to act on behalf of the
Corporation shall have any power or authority to bind the
Corporation in any way, to pledge the Corporation’s credit,
or to render the Corporation liable for any purpose or in any
amount, unless that person was acting with authority duly granted
by the Board of Directors as provided in these Bylaws, or unless an
unauthorized act was later ratified by the
Corporation.
Section 9.2 Checks and Drafts
.
All checks, drafts or other orders for the payment of money, notes
or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or agent of the
Corporation in such manner as shall from time to time be determined
by the Board of Directors.
Section 9.3 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
designate.
ARTICLE
X. AMENDMENTS
Section 10.1 By Stockholders
.
All Bylaws of the Corporation shall be subject to alteration or
repeal, and new by-laws may be made, by the affirmative vote of a
majority of voting power of shares of stock, present in person or
by proxy at a meeting with a quorum, entitled to vote in the
election of directors at any annual or special meeting of the
stockholders, provided that the notice or waiver of notice of such
meeting shall have summarized or set forth in full therein, the
proposed amendment.
Section 10.2 By Directors
. The
Board of Directors shall have the power to make, adopt, alter,
amend and repeal, from time to time, the Bylaws of the Corporation
by the affirmative vote of two thirds (2/3) of all Director Votes
(as such term is defined in the Company’s articles of
incorporation), provided, however, that the stockholders entitled
to vote with respect thereto as in this Article X above-provided
may alter, amend or repeal Bylaws made by the Board of Directors.
Further provided that the Board of Directors shall have no power to
change the quorum for meetings of stockholders or the Board of
Directors, or to change any provisions of the Bylaws
with respect to the removal of
directors or the filling of vacancies in the Board of Directors
resulting from the removal of such directors by the stockholders.
If any Bylaw regulating an impending election of directors is
adopted, amended or repealed by the Board of Directors, there shall
be set forth in the notice of the next meeting of stockholders for
the election of directors, the Bylaws so adopted, amended or
repealed.
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The
undersigned certifies that the foregoing Amended and Restated
Bylaws have been adopted as the Bylaws of the
Corporation.
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