Second Amended and Restated Bylaws
(Effective June 4, 2018)
ARTICLE I
SHAREHOLDERS
1.1
Meetings
.
1.1.1
Place
.
Meetings of the shareholders shall be held at such place as may be
designated by the board of directors.
1.1.2
Annual
Meeting
. Unless otherwise fixed by the board of directors,
an annual meeting of the shareholders, for the election of
directors and for other business as may properly be brought before
the meeting, shall be held at 10:00 a.m. local time on the 4th
Thursday of April in each year or, if that day is a legal holiday,
on the next following business day.
1.1.3
Special
Meetings
. Special meetings of the shareholders may be called
at any time by the president, the board of directors or the holders
of at least one-fifth of the outstanding shares of stock of the
corporation entitled to vote at the meeting.
1.1.4
Notice
.
Written notice of the time and place of all meetings of
shareholders and of the general nature of the business to be
transacted at each special meeting of shareholders shall be given
to each shareholder entitled to vote at the meeting at least ten
(10) days before the date of the meeting unless a greater period of
notice is required by law in a particular case.
1.1.5
Quorum
.
The presence in person or by proxy of the holders of a majority of
the outstanding shares of stock of the corporation entitled to vote
on a particular matter shall constitute a quorum for the purpose of
considering such matter. If a quorum is not present no business
shall be transacted except to adjourn to a future
time.
1.1.6
Adjourned
Meetings
. Those shareholders entitled to vote who attend a
meeting called for the election of directors that has been
previously adjourned for lack of a quorum, although less than a
quorum as fixed in these bylaws, shall nevertheless constitute a
quorum for the purposes of electing directors. Those shareholders
entitled to vote who attend a meeting of shareholders that has been
previously adjourned for one or more periods aggregating at least
fifteen (15) days because of an absence of a quorum, although then
less than a quorum as fixed in these by-laws, shall nevertheless
constitute a quorum for the purpose of acting upon any matter set
forth in the notice of the meeting if the notice states that those
shareholders who attend the adjourned meeting shall nevertheless
constitute a quorum for purpose of acting upon the
matter.
1.1.7
Participation
.
One or more shareholders may participate in a shareholders’
meeting by means of conference telephone or similar communications
equipment by means of which all persons participating in the
meeting can hear each other.
1.1.8
Voting
Rights
. Except as otherwise provided herein, the articles of
incorporation or bylaws, every shareholder shall have the
right at every shareholders’ meeting to one vote for every
share standing in his name on the books of the corporation which is
entitled to vote at such meeting. Every shareholder may vote either
in person or by proxy.
1.2
Advance Notice Provisions
for Business and Nominations at Meetings
.
1.2.1
At an annual meeting of shareholders, only such business shall be
conducted as has been properly brought before the meeting in
accordance with this Section 1.2. To be properly brought before the
annual meeting, business and nominations must be: (a) specified in
the notice of meeting (or in any supplement thereto) given by or at
the direction of 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 annual
meeting by any shareholder of the corporation who (i) is a
shareholder of record on both (A) the date of the giving of the
notice provided for in this Section 1.2 and (B) the record date for
the determination of shareholders entitled to vote at such annual
meeting, and (ii) complies with the notice procedures set forth in
this Section 1.2.
1.2.2
In addition to any other applicable requirements, for nominations
or other business to be properly brought before an annual meeting
by a shareholder, such shareholder must have given timely notice
thereof in proper written form to the secretary of the corporation
and such other business must be a proper subject of shareholder
action.
(a) To
be timely, a written notice of the intent of a shareholder to make
a nomination of a person for election as a director or to bring any
other matter before the annual meeting shall be received at the
principal executive offices of the corporation not earlier than the
close of business on the 180th day and not later than the close of
business on the 120th day prior to the first anniversary of the
date on which the corporation first mailed its proxy materials for
the preceding year’s annual meeting of shareholders. However,
if the date of the annual meeting is advanced more than 30 days
prior to or delayed by more than 30 days after the anniversary date
of the previous year’s annual meeting, notice by the
shareholder must be so received by the secretary not earlier than
the close of business on the 120th day prior to such annual meeting
and not later than the close of business on the later of the 75th
day prior to such annual meeting or the 10th day following the day
on which public announcement of the date of such annual meeting is
first made by the corporation.
(b) To
be in proper written form every such notice by a shareholder shall
set forth as to each nominee or matter such shareholder proposes to
bring before the annual meeting:
(i) as
to each person whom the shareholder proposes to nominate for
election or reelection as a director (each, a “proposed
nominee”): (A) the name, age, business address and residence
address of the proposed nominee; (B) the principal occupation or
employment of the proposed nominee; (C) the class or series and
number of shares of capital stock of the corporation, if any, which
are owned beneficially and of record by the proposed nominee; (D)
any other information regarding each proposed nominee proposed by
such shareholder as would be required to be included in
solicitations of proxies for elections of directors in an election
contest (even if an election contest is not involved), or is
otherwise required pursuant to Regulation 14A of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”),
and the rules and regulations promulgated thereunder, (including
such person’s written consent to being named in the proxy
statement, if any, as a nominee and to serving as a director if
elected); and (E) a description of all arrangements or
understandings between such shareholder and each proposed nominee
and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by
the shareholder;
(ii) as
to any other business that the shareholder proposes to bring before
the annual meeting: (A) a description of the matter, including the
text of the proposal of business (including the text of any
resolutions proposed for consideration and in the event that such
business includes a proposal to amend the bylaws of the
corporation, the language of the proposed amendment); (B) the
reasons for conducting such business at the annual meeting; and (C)
any material interest in such business of such shareholder and the
beneficial owner, if any, on whose behalf the proposal is made;
and
(iii)
as to the shareholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal of other
business is made: (A) the name and address of such shareholder, as
they appear on the corporation’s stock transfer books, and
the name and address of such beneficial owner; (B) the class or
series and number of shares of capital stock of the corporation
which are owned beneficially and of record by such shareholder and
such beneficial owner as of the date of the notice; and (C) a
representation that such shareholder intends to vote such stock at
such meeting, and that such shareholder intends to appear in person
or by proxy at the meeting to make the nomination or propose the
business specified in the notice.
1.2.3
If a shareholder is entitled to vote only for a specific class or
category of directors at a meeting of the shareholders, such
shareholder’s right to nominate one or more persons for
election as a director at the meeting shall be limited to such
class or category of directors.
1.2.4
In the event of a special meeting of shareholders at which
directors are to be elected, any shareholder entitled to vote may
nominate a person or persons for election as director if such
shareholder qualifies under Section 1.2.1 and such
shareholder’s written notice is prepared in accordance with
Section 1.2.2(b) and is received by the secretary not later than
the close of business on the 10th day following the day on which
public announcement of the special meeting is first made by the
corporation.
1.2.5
At a meeting of shareholders, the chairman of the board shall
declare out of order and disregard any nomination or other proposal
not made in compliance with the foregoing procedures.
1.2.6
In no event shall the adjournment or postponement of an annual or
special meeting of the shareholders, or any announcement thereof,
commence a new period for the giving of notice under this Section
1.2.
1.2.7
Notwithstanding the foregoing provisions of this Section 1.2,
unless otherwise required by law, if the shareholder of record (or
a qualified representative of such shareholder) does not appear at
the annual or special meeting to present a nomination or other
matter of business, such nomination or business shall be
disregarded, notwithstanding that proxies in respect of such vote
may have been received by the corporation.
1.2.8
As used in these bylaws, the terms “owned beneficially”
and “beneficial owner” means all shares which such
person is deemed to beneficially own pursuant to Rules 13d-3 and
13d-5 promulgated under the Exchange Act. For purposes of these
bylaws, a matter shall be deemed to have been “publicly
announced” if such matter is disclosed in a press release
reported by the Dow Jones News Service, the Associated Press or a
comparable national news service or in a document publicly filed by
the corporation with the Securities and Exchange
Commission.
1.2.9
Notwithstanding the foregoing provisions of this Section 1.2, a
shareholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Section 1.2. Nothing in
this Section 1.2 shall be deemed to affect any rights of
shareholders to request inclusion of proposals in the
corporation’s proxy statement pursuant to Rule 14a-8 under
the Exchange Act nor grant any shareholders a right to have any
nominee included in the corporation’s proxy
statement.
ARTICLE II
DIRECTORS
2.1
Number
and Term
. Subject to the provisions of applicable law, the
board of directors shall have authority to (a) determine the number
of directors to constitute the board, and (b) fix the terms of
office of the directors and classify the directors with respect to
the time for which they shall severally hold office. Except as
otherwise fixed by the board of directors under the authority given
above, the number of directors shall be five (5) and each director
elected to the board shall hold office until the next annual
meeting of the shareholders unless he sooner resigns or is removed
or disqualified.
2.2
Powers
.
All corporate powers shall be exercised by or under authority of,
and the business and affairs of the corporation shall be managed
under the direction of, the board of directors.
2.3
Meetings
.
2.3.1
Place
.
Meetings of the board of directors shall be held at such place as
may be designated by the board or in the notice of the
meeting.
2.3.2
Regular
Meetings
. Regular meetings of the board of directors shall
be held at such times as the board may designate. Notice of regular
meetings need not be given.
2.3.3
Special
Meetings
. Special meetings of the board of directors may be
called at any time by the president and shall be called by him on
the written request of one-third of the directors. Notice (which
need not be written) of the time and place of each special meeting
shall be given to each director at least two days before the
meeting.
2.3.4
Quorum
.
A majority of all the directors in office shall constitute a quorum
for the transaction of business at any meeting and except as
otherwise provided herein the acts of a majority of the directors
present at any meeting at which a quorum is present shall be the
acts of the board of directors.
2.3.5
Participation
.
One or more directors may participate in a meeting of the board or
a committee of the board by means of conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other.
2.4
Vacancies
.
Vacancies in the board of directors shall be filled by vote of a
majority of the remaining members of the board.
2.5
Committees
.
The board of directors may by resolution adopted by a majority of
the whole board designate one or more committees, each committee to
consist of two or more directors and such alternate members (also
directors) as may be designated by the board. To the extent
provided in such resolution, any such committee shall have and
exercise the powers of the board of directors. Unless otherwise
determined by the board, in the absence or disqualification of any
member of a committee the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another director to
act at the meeting in the place of any such absent or disqualified
member.
2.6
Limitation
on Directors’ Liability
. Except as otherwise provided
by law, a director shall not be personally liable for monetary
damages as such for any action taken, or failure to take any
action, unless:
2.6.1 The
director has breached or failed to perform the duties of his office
as provided in the Nevada General Corporation Law (the
“NGCL”); and
2.6.2 The
breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness.
ARTICLE III
OFFICERS
3.1
Election
.
The board of directors shall elect a president, treasurer,
secretary and such other officers as it deems advisable. Any number
of offices may be held by the same person.
3.2
Authority,
Duties and Compensation
. The officers shall have such
authority and perform such duties and serve for such compensation
as may be determined by or under the direction of the board of
directors. Except as otherwise provided by the board (a) the
president shall be the chief executive officer of the corporation,
shall have general supervision over the business and operations of
the corporation, may perform any act and execute any instrument for
the conduct of such business and operations and shall preside at
all meetings of the board and shareholders, (b) the other officers
shall have the duties usually related to their offices, and (c) the
vice president (or vice presidents in the order determined by the
board) shall in the absence of the president have the authority and
perform the duties of the president.
ARTICLE IV
INDEMNIFICATION
4.1
Right
to Indemnification
.
4.1.1
Third
Party Claims
. The corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action or proceeding, whether
civil, criminal, administrative or investigative (other than an
action by or in the right of the corporation), by reason of the
fact that he is or was a representative of the corporation, or is
or was serving at the request of the corporation as a
representative of another domestic or foreign corporation for
profit or not-for-profit, partnership, joint venture, trust or
other enterprise (including employee benefit plans), against
expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him
in connection with the action or proceeding if he acted in good
faith and in a manner he reasonably believed to be in, or not
opposed to, the best interest of the corporation and, with respect
to any criminal proceedings, had no reasonable cause to believe his
conduct was unlawful. The termination of any action or proceeding
by judgment, order, settlement or conviction upon a plea
nolo contendere
or
its equivalent shall not of itself create a presumption that the
person did not act in good faith and in a manner that he reasonably
believed to be in, or not opposed to, the best interest of the
corporation and, with respect to any criminal proceeding, had
reasonable cause to believe that his conduct was
unlawful.
4.1.2
Derivative
Actions
. The corporation shall indemnify any person who was
or is a party, or is threatened to be made a party, to any
threatened, pending or completed action by or in the right of the
corporation to procure judgment in its favor by reason of the fact
that he is or was a representative of the corporation or is or was
serving at the request of the corporation as a representative of
another domestic or foreign corporation for profit or
not-for-profit, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees)
actually and reasonably incurred by him in connection with the
defense or settlement of the action if he acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the
best interest of the corporation; provided that no indemnification
shall be made under this section in respect of any claim, issue or
matter as to which the person has been adjudged to be liable to the
corporation unless and only to extent that a court of competent
jurisdiction determines that, despite the adjudication of liability
but in view of the circumstances of the case, the person is fairly
and reasonably entitled to indemnity for the expenses that such
court deems proper.
4.2
Procedure
for Effecting Indemnification
. Unless ordered by a court,
any indemnification made under Sections 4.1.1 or 4.1.2 shall be
made by the corporation only as authorized in this specific case
upon a determination that indemnification of the representative is
proper in the circumstances because he has met the applicable
standard of conduct set forth in those sections. Such determination
shall be made:
4.2.1 By the
Board of Directors by a majority vote of a quorum consisting of
directors who are not parties to the action or
proceeding;
4.2.2 If such
a quorum is not obtainable or if obtainable and a majority vote of
a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion;
4.2.3 By the
shareholders; or
4.2.4 In such
other manner, if any, as shall be permitted by NGCL.
4.3
Advancement
of Expenses
. Expenses (including attorneys’ fees)
incurred in defending any action or proceeding referred to in this
Article may be made by the corporation in advance of the final
disposition of the action or proceeding upon receipt of an
undertaking by or on behalf of the representative to repay the
amount if it is ultimately determined that he is not entitled to be
indemnified by the corporation as authorized in this Article or
otherwise.
ARTICLE V
SHARES
5.1
Share
Certificates
. Every shareholder of record shall be entitled
to a share certificate representing the shares held by him. Every
share certificate shall bear the corporate seal (which may be a
facsimile) and the signature of the president or a vice president
and the secretary or an assistant secretary.
5.2
Transfers
.
Transfers of share certificates and the shares represented thereby
shall be made on the books of the corporation only by the
registered holder or by duly authorized attorney. Transfer shall be
made only on surrender of the share certificate or
certificates.
ARTICLE VI
AMENDMENTS
Except
as otherwise provided by applicable law, these By-Laws may be
amended at any regular or special meeting of the board of directors
by the vote of a majority of all the directors in office or at any
annual or special meeting of shareholders by the vote of the
holders of a majority of the outstanding stock entitled to vote.
Notice of any such meeting of shareholders shall set forth the
proposed change or a summary thereof.
ARTICLE VII
NEVADA ACQUISITION OF CONTROLLING INTEREST ACT
Pursuant
to NRS § 78.378, the Corporation shall not be subject to the
provisions of Nevada Revised Statutes Sections 78.378 to 78.3793,
inclusive (Acquisition of Controlling Interest), and specifically
that the provisions of NRS §§ 78.378 to 78.3793 do not
apply to the Corporation or to an acquisition of a controlling
interest by existing or future stockholders.
