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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): January 7, 2025
GLOBAL ACQUISITIONS CORPORATION
(Exact Name of Registrant as Specified in
its Charter)
Nevada |
|
000-24970 |
|
88-0203976 |
(State or Other Jurisdiction of Incorporation) |
|
(Commission File Number) |
|
(IRS Employer Identification No.) |
1120 N. Town Center Dr #160 Las Vegas, NV |
|
89144 |
(Address of Principal Executive Offices) |
|
(Zip Code) |
Registrant’s telephone number, including
area code: (702) 400-4005
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of
the registrant under any of the following provisions (see General
Instruction A.2. below):
|
[ ] |
Written communications pursuant to Rule 425 under
the Securities Act (17 CFR 230.425) |
|
[ ] |
Soliciting material pursuant to Rule 14a-12 under
the Exchange Act (17 CFR 240.14a-12) |
|
[ ] |
Pre-commencement communications pursuant to Rule
14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
[ ] |
Pre-commencement communications pursuant to Rule
13e-4(c) under the Exchange Act (17 CFR 240.13e 4(c)) |
Securities registered pursuant to Section
12(b) of the Act: None.
Indicate by check mark whether the
registrant is an emerging growth company as defined in Rule 405 of the
Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company [ ]
If an emerging growth company, indicate by
check mark if the registrant has elected not to use the extended transition
period for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act. [ ]
Item 5.03 Amendments to Articles of Incorporation or Bylaws;
Change in Fiscal Year.
On January 7, 2025, the board of directors
(the “Board”) of Global Acquisitions Corp. (the “Company”) adopted
amended and restated bylaws of the Company (as amended and restated, the “Amended
and Restated Bylaws”).
The Amended and Restated Bylaws include
amendments to do the following: (i) allow for the Company to issue
uncertificated/book-entry shares (previously the Bylaws were silent as to
uncertificated shares); (ii) update the voting requirements
at meetings of shareholders to be consistent with Nevada law, which provides
for a proposal to be approved if the number of votes cast in favor of the
action exceeds the number of votes cast in opposition to the action (previously
the Bylaws provided for majority approval); (iii) provide for roles of additional
officers of the Company, including Chief Executive Officer, Chief Financial
Officer, Vice Presidents, Assistant Secretaries, Assistant Treasurers and
others (the original Bylaws only provided for roles for a President, Secretary and
Treasurer); (iv) update the principal address of
the Company to be at such location within or without the State of Nevada as may
be determined from time to time by resolution of the Board, instead of the
fixed address set forth in the prior Bylaws; (v) update the informational and
other requirements and procedures for any shareholder nominating individuals
for election to the Board or proposing other business at a shareholder meeting,
including to address the adoption by the Securities and Exchange Commission of
“universal proxy” rules; (vi) provide that only the Chief
Executive Officer, the Board, or the Chairman of the Board, may call special
meetings of shareholders (previously the Bylaws were silent as to who could
call meetings of shareholders); (vii) provide that in the absence of
a quorum at any meeting or any adjournment thereof, (A) the Board, without
a vote of the shareholders, may (1) postpone, reschedule, or cancel any
previously scheduled annual meeting of shareholders and (2) postpone,
reschedule, or cancel any previously scheduled special meeting of the shareholders
called by the Board or management (but not by the shareholders); or (B) the
holders of a majority of the shares of stock entitled to vote who are present,
in person or by proxy, or, in the absence therefrom of all the shareholders,
any officer entitled to preside at, or to act as secretary of, such meeting,
may adjourn the meeting from time to time until a quorum shall be represented;
(viii) clarify the steps required
for shareholders to take action via a written consent to action without a
meeting, including certain confirmation and inspection requirements associated
therewith; (ix) clarify that meetings of
shareholders and directors may take place through electronic communications,
videoconferencing, teleconferencing or other available technology; (x) provide that the number of
directors shall be no less than one and no more than fifteen (previously the
Bylaws did not provide a limit on the total numbers of directors); (xi) provide that in the event that
the Board elects a Chairman of the Board who is an employee of the Company, the
Board may also elect a Lead Independent Director who shall preside at all
meetings of the Board and shareholders at which he or she shall be present and
the Chairman of the Board is not present and shall have and may exercise such
powers as may, from time to time, be assigned to him or her by the Board, the
Amended and Restated Bylaws or as may be provided by law; (xii) set forth procedures for the
formation of Board committees; (xiii) expand upon the rights of
indemnification and indemnification procedures for officers and directors of
the Company, including that each Indemnitee (as described in the Amended and
Restated Bylaws) shall be indemnified and held harmless by the Company to the
fullest extent permitted by Nevada law; and (xiv) affect certain updates and
modernization changes to the prior Bylaws. The Amended and Restated Bylaws also
reflect certain other clarifying and/or conforming changes.
The foregoing summary is qualified in its entirety
by reference to the Amended and Restated Bylaws, a copy of which is attached
hereto as Exhibit 3.1 and incorporated by reference in this Item 5.03.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned hereunto duly authorized.
|
Global
Acquisitions Corporation |
|
|
|
|
By: |
/s/ Ronald S.
Boreta |
Date:
January 10, 2025 |
Name: |
Ronald S. Boreta |
|
Title: |
Chief Executive
Officer |
AMENDED AND RESTATED
BYLAWS OF
GLOBAL ACQUISITIONS CORPORATION
Effective as of January 7, 2025
TABLE OF CONTENTS
Amended and
Restated Bylaws of Global
Acquisitions Corporation Page i |
Amended and Restated Bylaws of Global Acquisitions Corporation Page ii |
AMENDED AND RESTATED
BYLAWS
of
GLOBAL ACQUISITIONS CORPORATION
ARTICLE I.
OFFICES
Section 1.01
Principal Office
The
principal office of Global Acquisitions Corporation, a Nevada corporation (the
“Corporation”) shall be at
such location within or without the State of Nevada as may be determined from
time to time by resolution of the board of directors of the Corporation (the “Board of Directors”).
Section
1.02 Other
Offices
Other
offices and places of business either within or without the State of Nevada may
be established from time to time by resolution of the Board of Directors or as
the business of the Corporation may require. The Corporation’s resident agent
and the street address of the Corporation’s resident agent in Nevada shall be
as determined by the Board of Directors from time to time.
ARTICLE II.
STOCKHOLDERS
Section
2.01 Annual Meetings
Annual
meetings of the Stockholders of the Corporation (the “Stockholders”) shall be held on such date and at such time
as may be designated from time to time by the Board of Directors. At the annual
meeting, directors shall be elected and such other business, if any, may be
transacted as may be brought before the meeting pursuant to this Section 2.01. No business may be transacted at an annual
meeting of Stockholders, other than business that is either (i) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors (or any duly authorized committee thereof),
(ii) otherwise properly brought before the annual meeting by or at the
direction of the Board of Directors (or any duly authorized committee thereof)
or (iii) otherwise properly brought before the annual meeting by any
Stockholder of the Corporation (A) who is a Stockholder of record on the
date of the giving of the notice provided for in Section
2.13 and on the record date for the determination
of Stockholders entitled to vote at such annual meeting and (B) who
complies with the notice procedures set forth in Section
2.13.
Section
2.02 Special
Meetings
Special
meetings of the Stockholders, for any purpose or purposes, described in the
notice of meeting, may be called by the Chief Executive Officer, the Board of
Directors, or by the Chairman of the Board of Directors, and shall be called by
the Chief Executive Officer by vote of, or by an instrument in writing signed
by the holders of a majority of the issued and outstanding capital stock of the
Corporation.
Section
2.03 Place
of Meetings
Any meeting of the
Stockholders may be held at any location in or out of the State of Nevada as
may be designated in the notice of meeting. The Board of Directors may, in its
sole discretion, determine that a meeting of Stockholders shall not be held at any
place, but may instead be held solely by means of electronic communications,
videoconferencing, teleconferencing or other available technology authorized by
and in accordance with Chapter 78 of the Nevada Revised Statutes (“NRS”). Participation in
such meeting constitutes presence in person at such meeting.
Section
2.04 Notice
of Meetings; Waiver of Notice
(a) The chief executive officer, if any, the
president, a vice president, the secretary, an assistant secretary or any other
individual designated by the Board of Directors shall sign and deliver or cause
to be delivered to the Stockholders written notice of any Stockholders’ meeting
not less than ten (10) days, but not more than sixty (60) days,
before the date of such meeting. The notice shall state the place, date and
time of the meeting, the means of electronic communications, videoconferencing,
teleconferencing or other available technology, if any, by which Stockholders
and proxy holders may be deemed to be present in person and vote at such
meeting, the record date for determining the Stockholders entitled to vote at
the meeting (if such date is different from the record date for Stockholders
entitled to notice of the meeting) and, except in the case of the annual
meeting, the purpose or purposes for which the meeting is called.
(b) In the case of an annual meeting, subject
to Section
2.13 hereof, any proper business may be presented
for action, except that (i) if a proposed plan of merger, conversion or
exchange is submitted to a vote, the notice of the meeting must state that the
purpose, or one of the purposes, of the meeting is to consider the plan of
merger, conversion or exchange and must contain or be accompanied by a copy or
summary of the plan; and (ii) if a proposed action creating dissenters’
rights is to be submitted to a vote, the notice of the meeting must state that
the Stockholders are or may be entitled to assert dissenters’ rights under NRS
92A.300 to 92A.500, inclusive, and be accompanied by a copy of those sections.
(c) A copy of the notice shall be personally
delivered, mailed postage prepaid or sent by electronic communication as
provided in NRS 75.150 to each Stockholder of record entitled to vote at the
meeting at the address appearing on the records of the Corporation. If
personally delivered or delivered by electronic communication (with
confirmation of successful transmission), service of the notice is complete,
and the time of the notice begins to run from the date upon which the notice is
delivered or sent by electronic transmission. If mailed, service of the notice
is complete, and the time of the notice begins to run from the date upon which
the notice is deposited in the mail. Personal delivery of any such notice to
any officer of a corporation or association, to any member of a
limited-liability company managed by its members, to any manager of a
limited-liability company managed by managers, to any general partner of a partnership
or to any trustee of a trust constitutes delivery of the notice to the
corporation, association, limited-liability company, partnership or trust.
(d) The written certificate of the individual
signing a notice of meeting, setting forth the substance of the notice or
having a copy thereof attached, the date the notice was mailed or personally
delivered to the Stockholders and the addresses to which the notice was mailed,
shall be prima facie evidence of the manner and fact of giving such notice.
(e) Any Stockholder may waive notice of any
meeting by a signed writing, either before or after the meeting. Such waiver of
notice shall be deemed the equivalent of the giving of such notice.
Section 2.05
Determination of Stockholders of Record
(a) For the purpose of determining the
Stockholders entitled to notice of and to vote at any meeting of Stockholders
or any adjournment or postponement thereof, or entitled to receive payment of
any distribution or the allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion, or exchange of stock or for the
purpose of any other lawful action, the directors may fix, in advance, a record
date, which shall not be more than sixty (60) days nor less than ten
(10) days before the date of such meeting, if applicable.
(b) If no record date is fixed, the record
date for determining Stockholders: (i) entitled to notice of and to vote
at a meeting of Stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held; and (ii) for any other purpose shall be at the close of business on
the day on which the Board of Directors adopts the resolution relating thereto.
A determination of Stockholders of record entitled to notice of or to vote at
any meeting of Stockholders shall apply to any adjournment or postponement of
the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned or postponed meeting and
must fix a new record date if the meeting is adjourned or postponed to a date
more than sixty (60) days later than the meeting date set for the original
meeting.
Section
2.06 Quorum;
Adjourned Meetings
(a) Unless
the Articles of Incorporation provide for a different proportion, Stockholders
holding at least a majority of the voting power of the Corporation’s
outstanding shares of capital stock, represented in person or by proxy
(regardless of whether the proxy has authority to vote, or express consent or
dissent, on all matters), are necessary to constitute a quorum for the
transaction of business at any meeting. If, on any issue, voting by classes or
series is required by Chapter 78 or 92A of the NRS, the Articles of Incorporation
or these Amended and Restated Bylaws (as the same may be further amended,
restated, amended and restated or otherwise modified from time to time, these “Bylaws”), at least a majority of
the voting power, represented in person or by proxy (regardless of whether the
proxy has authority to vote, or express consent or dissent, on all matters),
within each such class or series is necessary to constitute a quorum of each
such class or series.
(b) In the absence of a quorum at any meeting
or any adjournment thereof, (A) the Board of Directors, without a vote of
the Stockholders, may (1) postpone, reschedule, or cancel any previously
scheduled annual meeting of Stockholders and (2) postpone, reschedule, or
cancel any previously scheduled special meeting of the Stockholders called by
the Board of Directors or management (but not by the Stockholders); or (B) the
holders of a majority of the shares of stock entitled to vote who are present,
in person or by proxy, or, in the absence therefrom of all the Stockholders,
any officer entitled to preside at, or to act as secretary of, such meeting, may
adjourn the meeting from time to time until a quorum shall be represented. At
any such adjourned meeting at which a quorum shall be represented, any business
may be transacted which might have been transacted as originally called. When a
Stockholders’ meeting is adjourned to another time or place hereunder, 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. However, if a new
record date is fixed for the adjourned meeting, notice of the adjourned meeting
must be given to each Stockholder of record as of the new record date. The
Stockholders present at a duly convened meeting at which a quorum is present
may continue to transact business until adjournment, notwithstanding the
departure of enough Stockholders to leave less than a quorum of the voting
power.
Section 2.07
Voting
(a) Unless otherwise
provided in Chapter 78 of the NRS, the Articles of Incorporation, or the
resolution providing for the issuance of preferred stock or series of common
stock adopted by the Board of Directors pursuant to authority expressly vested
in it by the provisions of the Articles of Incorporation (if any such authority
is so vested), each Stockholder of record, or such Stockholder’s duly
authorized proxy, shall be entitled to one (1) vote for each share of
voting stock standing registered in such Stockholder’s name at the close of
business on the record date.
(b) If a quorum is present, unless the
Articles of Incorporation, these Bylaws, the rules or regulations of any stock
exchange applicable to the Corporation, Chapter 78 of the NRS or other
applicable law provide for a different proportion, action by the Stockholders
entitled to vote on a matter, other than the election of directors, is approved
by and is the act of the Stockholders if the number of votes cast in favor of
the action exceeds the number of votes cast in opposition to the action, unless
voting by classes or series is required for any action of the Stockholders by
Chapter 78 or 92A of the NRS, the Articles of Incorporation or these Bylaws, in
which case the number of votes cast in favor of the action by the voting power
of each such class or series must exceed the number of votes cast in opposition
to the action by the voting power of each such class or series.
(c) If a quorum is present, directors shall
be elected by a plurality of the votes cast.
(d) In determining the right to vote shares
of the Corporation pursuant to this Section 2.7 or otherwise,
the Corporation may rely on any instruments or statements presented to
it, provided that the Corporation has the right, but not the
obligation, to require and review such proof of ownership and voting rights as
it determines in good faith. The Corporation is entitled to reject a vote,
consent, waiver, or proxy appointment if the secretary or other officer or
agent authorized to tabulate votes, acting in good faith, has reasonable basis
for doubt about the validity of the signature on it or about the signatory’s
authority to sign for the Stockholder. All decisions of the Corporation shall
be valid and binding unless and until a court of competent jurisdiction
determines otherwise. The Corporation and its officer or agent who accepts or
rejects a vote, consent, waiver, or proxy appointment in good faith and in
accordance with the standards of this Section
2.07, are not liable for damages to the Stockholder for
the consequences of such acceptance or rejection.
Any Stockholders
directly or indirectly soliciting proxies from other Stockholders must use a
proxy card color other than white, which shall be reserved for the exclusive
use of the Board of Directors.
Section
2.08 Proxies
Each
Stockholder entitled to vote at a meeting of Stockholders or to express dissent
to a corporate action in writing without a meeting may authorize, in a manner
permitted by Chapter 78 of the NRS, another person or persons to act for such
Stockholder by proxy. Such proxy
shall be filed with the Secretary of the Corporation or other person authorized
to tabulate votes before or at the time of the meeting. Every proxy shall
continue in full force and effect until its expiration or revocation in a
manner permitted by Chapter 78 of the NRS. At any meeting of Stockholders, any
holder of shares entitled to vote may designate, in a manner permitted by
Chapter 78 of the NRS, another person or persons to act as a proxy or proxies.
Every proxy shall continue in full force and effect until its expiration or
revocation in a manner permitted by Chapter 78 of the NRS.
Section
2.09 Stockholder
Action Without a Meeting.
(a) Any
action required to be taken at any annual or special meeting of Stockholders of
the Corporation or any action which may be taken at any annual or special
meeting of such Stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action that is the subject of the consent at a meeting in which
each Stockholder entitled to vote on the action is present and votes, and shall
be delivered to the Corporation by delivery to its registered office, its
principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of Stockholders are
recorded.
(b) Every written consent shall bear the
date of signature of each Stockholder who signs the consent, and no written
consent shall be effective to take the corporate action referred to therein
unless, within 60 days (or such other period as provided by applicable law) of
the earliest dated consent delivered in the manner required by this Section to
the Corporation, written consents signed by a sufficient number of holders to
take action are delivered to the Corporation by delivery to its registered
office, its principal place of business or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of Stockholders
are recorded. Delivery made to the Corporation’s registered office shall be by
hand or by certified or registered mail, return receipt requested.
(c) Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those Stockholders who have not consented in writing, provided further that failure to provide such notice shall not effect the validity of such action.
(d) In the event of the delivery to the Corporation of a consent or consents in writing (“Consents”), the secretary of the Corporation, or such other officer of the Corporation as the Board may designate, shall provide for the safe-keeping of such Consents and any related revocations and shall promptly conduct such ministerial review of the sufficiency of all Consents and any related revocations and of the validity of the action to be taken by Stockholder consent as the secretary of the Corporation, or such other officer of the Corporation as the Board may designate, as the case may be, deems necessary or appropriate, including, without limitation, whether the Stockholders of a number of shares having the requisite voting power to authorize or take the action specified in Consents have given consent; provided, however, that if the corporate action to which the Consents relate is the removal or replacement of one or more members of the Board, the secretary of the Corporation, or such other officer of the Corporation as the Board may designate, as the case may be, shall promptly designate two persons, who shall not be members of the Board, to serve as inspectors (“Inspectors”) with respect to such Consent and such Inspectors shall discharge the functions of the secretary of the Corporation, or such other officer of the Corporation as the Board may designate, as the case may be, under this section. If after such investigation the secretary of the Corporation, such other officer of the Corporation as the Board may designate or the Inspectors, as the case may be, shall determine that the action purported to have been taken is duly authorized by the Consents, that fact shall be certified on the records of the Corporation kept for the purpose of recording the proceedings of meetings of Stockholders and the Consents shall be filed in such records.
In conducting
the investigation required by this section, the secretary of the Corporation,
such other officer of the Corporation as the Board may designate or the
Inspectors, as the case may be, may, at the expense of the Corporation, retain
special legal counsel and any other necessary or appropriate professional
advisors as such person or persons may deem necessary or appropriate and shall
be fully protected in relying in good faith upon the opinion of such counsel or
advisors.
(e) No action by written consent without a
meeting shall be effective until such date as the secretary of the Corporation,
such other officer of the Corporation as the Board may designate, or the
Inspectors, as applicable, certify to the Corporation that the Consents
delivered to the Corporation in accordance with this section, represent at
least the minimum number of votes that would be necessary to take the corporate
action in accordance with Nevada law and the Articles of Incorporation and
Bylaws of the Corporation.
(f) Nothing contained in this Section 2.09
shall in any way be construed to suggest or imply that the Board or any
Stockholder shall not be entitled to contest the validity of any Consents or
related revocations, whether before or after such certification by the
secretary of the Corporation, such other officer of the Corporation as the
Board may designate or the Inspectors, as the case may be, or to take any other
action (including, without limitation, the commencement, prosecution, or
defense of any litigation with respect thereto, and the seeking of injunctive
relief in such litigation).
(g) A consent signed under this Section 2.09 has
the effect of a vote at a meeting and may be described as such in any document.
Section 2.10
Organization
(a) Meetings of Stockholders shall be
presided over by the Chairman of the Board, or, in the absence of the Chairman,
by the Lead Independent Director, or in the absence of the Lead Independent
Director, the chief executive officer, if any, or, in the absence of the chief
executive officer, by the president, if any, or, in the absence of the
foregoing persons, by a chairman designated by the Board of Directors, or, in
the absence of such designation by the Board of Directors, by an executive
officer of the Corporation or a chairman chosen at the meeting by the
Stockholders entitled to cast a majority of the votes which all Stockholders
present in person or by proxy are entitled to cast. The secretary, or in the
absence of the secretary an assistant secretary, shall act as secretary of the
meeting, but in the absence of the secretary and any assistant secretary the
chairman of the meeting may appoint any person to act as secretary of the
meeting. The order of business at each such meeting shall be as determined by
the chairman of the meeting. The chairman of the meeting shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts and things as are necessary or desirable for the proper conduct of
the meeting, including, without limitation, the establishment of procedures for
the maintenance of order and safety, limitation on the time allotted to
questions or comments on the affairs of the Corporation, restrictions on entry
to such meeting after the time prescribed for the commencement thereof and the
opening and closing of the voting polls.
(b) The chairman of the meeting may appoint
one or more inspectors of elections. The inspector or inspectors may
(i) ascertain the number of shares outstanding and the voting power of
each; (ii) determine the number of shares represented at a meeting and the
validity of proxies or ballots; (iii) count all votes and ballots;
(iv) determine any challenges made to any determination made by the
inspector(s); and (v) certify the determination of the number of shares
represented at the meeting and the count of all votes and ballots.
Section
2.11 Absentees'
Consent To Meetings
Transactions
of any meeting of the Stockholders are as valid as though had at a meeting duly
held after regular call and notice if a quorum is represented, either in person
or by proxy, and if, either before or after the meeting, each of the persons
entitled to vote, not represented in person or by proxy (and those who,
although present, either object at the beginning of the meeting to the
transaction of any business because the meeting has not been lawfully called or
convened or expressly object at the meeting to the consideration of matters not
included in the notice which are legally or by the terms of these Bylaws
required to be included therein), signs a written waiver of notice and/or
consent to the holding of the meeting or an approval of the minutes thereof.
All such waivers, consents, and approvals shall be filed with the corporate
records and made a part of the minutes of the meeting. Attendance of a person
at a meeting shall constitute a waiver of notice of such meeting, except when
the person objects at the beginning of the meeting to the transaction of any
business because the meeting is not lawfully called, noticed or convened and
except that attendance at a meeting is not a waiver of any right to object to
the consideration of matters not properly included in the notice if such
objection is expressly made at the time any such matters are presented at the
meeting. Neither the business to be transacted at nor the purpose of any
regular or special meeting of Stockholders need be specified in any written
waiver of notice or consent, except as otherwise provided in these Bylaws.
Section 2.12
Director Nominations
Subject to the rights, if any, of the holders of
preferred stock to nominate and elect directors, nominations of persons for
election to the Board of Directors of the Corporation may be made by the Board
of Directors, by a committee appointed by the Board of Directors, or by any Stockholder
of record entitled to vote in the election of directors who complies with the
notice procedures set forth in Section
2.13.
Section 2.13
Stockholder
Proposals: Advance Notice and Director Nominations
(a) Annual
Meetings of Stockholders.
(i) Nominations
of persons for election to the Board of Directors and the proposal of other
business to be considered by the Stockholders may be made at an annual meeting
of Stockholders only (A) pursuant to the Corporation’s notice of meeting (or
any supplement thereto), (B) by or at the direction of the Board of Directors
or a committee appointed by the Board of Directors, or (C) by any Stockholder
who (1) was a Stockholder of record at the time the notice provided for in
this Section
2.13 is delivered to the secretary, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Section
2.13 or (2) properly made such proposal in
accordance with Rule 14a-8 under the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (as so amended and inclusive
of such rules and regulations, the “Exchange
Act”), which proposal has been included in the proxy statement for the
annual meeting.
(ii) Except
for nominations that are included in the Corporation’s proxy statement for an
annual meeting of Stockholders pursuant to Section 2.13(b), for any nominations or other business to be
properly brought before an annual meeting by a Stockholder pursuant to Section
2.13(a)(ii)(C) of these Bylaws, the Stockholder
must have given timely notice thereof in writing to the secretary and must
provide any updates or supplements to such notice at the times and in the forms
required by this Section
2.13, and any such proposed business (other than the
nominations of persons for election to the Board of Directors) must constitute
a proper matter for Stockholder action. To be timely, a Stockholder’s notice
shall be delivered to the secretary at the principal executive offices of the
Corporation not later than the close of business on the ninetieth (90th) day,
nor earlier than the close of business on the one hundred twentieth (120th)
day, prior to the first anniversary of the preceding year’s annual meeting (provided,
however, that in the event that the date of the annual meeting is more than
thirty (30) days before or more than sixty (60) days after such anniversary
date, notice by the Stockholder must be so delivered not earlier than the close
of business on the one hundred twentieth (120th) day prior to such annual
meeting and not later than the close of business on the later of the ninetieth
(90th) day prior to such annual meeting or the tenth (10th) day following the
day on which public announcement of the date of such meeting is first made by
the Corporation). In no event shall the public announcement of an adjournment
or postponement of an annual meeting commence a new time period (or extend any
time period) for the giving of a Stockholder’s notice as described above. To be
in proper form, such Stockholder’s notice must:
(A) as to each person whom the Stockholder
proposes to nominate for election as a director of the Corporation, set forth
(I) all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or
is otherwise required, in each case pursuant to and in accordance with Section
14(a) of the Exchange Act and the rules and regulations promulgated thereunder,
(II) such person’s written consent to being named in the proxy statement as a
nominee and to serving as a director of the Corporation if elected and (III)
such other information regarding such person as may reasonably be requested by
the Board of Directors in writing prior to the meeting of Stockholders at which
such candidate’s nomination is to be acted upon in order for the Board of
Directors to determine the eligibility of such candidate for nomination to be
an independent director of the Corporation in accordance with the listing
requirements and rules of the exchange or market (including Nasdaq) on which
the Corporation’s common stock is then traded (“Exchange Rules”);
(B) with respect to each nominee for election
or reelection to the Board of Directors, include the completed and signed
questionnaire, representation and agreement required by Section
2.14 of these Bylaws;
(C)
as to any other business that the
Stockholder proposes to bring before the meeting, set forth (I) a brief description
of the business desired to be brought before the meeting, (II) the text of the
proposal or business (including the text of any resolutions proposed for
consideration and in the event that such business includes a proposal to amend
these Bylaws, the language of the proposed amendment), (III) the reasons for
conducting such business at the meeting and any material interest in such
business of such Stockholder and the beneficial owner, if any, on whose behalf
the proposal is made, and (IV) any other information relating to such item of
business that would be required to be disclosed in a proxy statement or other
filing required to be made in connection with the solicitation of proxies in
support of the business proposed to be brought before the meeting pursuant to
Section 14A of the Exchange Act; and
(D)
as to the Stockholder giving the
notice and the beneficial owner, if any, on whose behalf the nomination or
proposal is made, set forth (I) the name and address of such Stockholder, as
they appear on the Corporation’s books, and of such beneficial owner, (II) the
class or series and number of shares of stock which are owned beneficially and
of record by such Stockholder and such beneficial owner, except that such
Stockholder shall in all events be deemed to beneficially own any shares of any
class or series of stock of the Corporation as to which such Stockholder has a
right to acquire beneficial ownership at any time in the future, (III) a
description of any agreement, arrangement or understanding with respect to the
nomination or proposal between or among such Stockholder and/or such beneficial
owner, any of their respective affiliates or associates, and any others acting
in concert with any of the foregoing, including, in the case of a nomination,
the nominee, (IV) a description of any
agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares) that has been entered into as of the date of the Stockholder’s notice by, or on behalf of, such Stockholder and such beneficial owners, whether or not such instrument or right shall be subject to settlement in underlying shares of Stock, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, such Stockholder or such beneficial owner, with respect to securities of the Corporation, (V) a representation that the Stockholder is a holder of record of stock entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination, (VI) a representation whether the Stockholder or the beneficial owner, if any, intends or is part of a group which intends (x) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of outstanding stock required under applicable law to approve or adopt the proposal or elect the nominee and/or (y) otherwise to solicit proxies or votes from Stockholders in support of such proposal or nomination, (VII) a representation whether the Stockholder or the beneficial owner, if any, intends to solicit proxies or votes in support of such director nominees or nomination in accordance with Rule 14a-19 promulgated under the Exchange Act (and if so, such representation shall also include an undertaking that such Stockholder or beneficial owner will deliver to beneficial owners of shares representing at least 67% of the voting power of the stock entitled to vote generally in the election of directors either (1) at least 20 calendar days before the annual meeting, a copy of its definitive proxy statement for the solicitation of proxies for its director candidates, or (2) at least 40 calendar days before the annual meeting of Stockholders, a Notice of Internet Availability of Proxy Materials that would satisfy the requirements of Rule 14a-16(d) of the Exchange Act), (VIII) a representation that the Stockholder has complied with all applicable requirements of state law and the Exchange Act with respect to matters set forth in this Section 2.13(a), (IX) any material pending or threatened legal proceeding in which such Stockholder is a party or material participant involving the Corporation or any of its officers or directors, or any affiliate of the Corporation, (X) any other material relationship between such Stockholder, on the one hand, and the Corporation or any affiliate of the Corporation, on the other hand, and (XI) any other information relating to such Stockholder and beneficial owner, if any, required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in an election contest pursuant to and in accordance with Section 14A of the Exchange Act and the rules and regulations promulgated thereunder.
The foregoing notice requirements of this Section
2.13(a) shall be deemed satisfied by a
Stockholder with respect to business other than a nomination for election as a
director of the Corporation if the Stockholder has notified the Corporation of
his, her or its intention to present a proposal at an annual meeting in
compliance with applicable rules and regulations promulgated under the Exchange
Act and such Stockholder’s proposal has been included in a proxy statement that
has been prepared by the Corporation to solicit proxies for such annual
meeting. The Corporation may require any proposed nominee for election as a
director of the Corporation to furnish such other information as the
Corporation may reasonably require to determine the eligibility of such
proposed nominee to serve as a director of the Corporation.
The foregoing notice requirements of
this Section
2.13(a) shall not apply to any proposal made pursuant
to Rule 14a-8 (or any successor thereof) promulgated under the Exchange Act. A
proposal to be made pursuant to Rule 14a-8 (or any successor thereof)
promulgated under the Exchange Act shall be deemed satisfied if the Stockholder
making such proposal complies with the provisions of Rule 14a-8 and has
notified the Corporation of his or her intention to present a proposal at an
annual meeting in compliance with Rule 14a-8 and such Stockholder’s proposal
has been included in a proxy statement that has been prepared by the
Corporation to solicit proxies for such annual meeting. The Corporation may
require any proposed nominee to furnish such other information as it may
reasonably require to determine (x) the eligibility of such proposed nominee to
serve as a director of the Corporation and (y) whether the nominee
would qualify as an “independent director” or “audit committee financial
expert” under applicable law, securities exchange rule or regulation, or any
publicly disclosed corporate governance guideline or committee charter of the
Corporation. The Corporation may also require any proposed nominee to submit to
interviews with the Board of Directors or any committee thereof, and such
proposed nominee shall make himself or herself available for any such
interviews within ten (10) business days after such interviews have been
requested by the Board of Directors or any committee thereof.
(iii)
Notwithstanding anything in the
second sentence of Section
2.13 (a)(ii) of these Bylaws to the contrary, in
the event that the number of directors to be elected to the Board of Directors
at the annual meeting is increased effective after the time period for which
nominations would otherwise be due under Section 2.13(a)(ii) of these Bylaws and there is no
public announcement by the Corporation naming the nominees for the additional
directorships at least one hundred (100) days prior to the first anniversary of
the preceding year’s annual meeting, a Stockholder’s notice required by
this Section
2.13 shall also be considered timely, but only
with respect to nominees for the additional directorships, if it shall be
delivered to the secretary at the principal executive offices of the
Corporation not later than the close of business on the tenth (10th) day
following the day on which such public announcement is first made by the
Corporation.
(iv)
Notwithstanding anything to the
contrary in these Bylaws, unless otherwise required by applicable law, if any Stockholder
(i) provides notice pursuant to Rule 14a-19(b) promulgated under the Exchange
Act with respect to any proposed nominee and (ii) subsequently fails to comply
with the requirements of Rule 14a-19(a)(2) or Rule 14a-19(a)(3) promulgated
under the Exchange Act (or fails to timely provide documentation reasonably
satisfactory to the Corporation that such Stockholder has met the requirements
of Rule 14a-19(a)(3) promulgated under the Exchange Act in accordance with the
following sentence), then the Nomination shall be disregarded and no vote on
the election of such proposed nominee shall occur, notwithstanding that the
Nomination is set forth in the notice of meeting or other proxy materials and
notwithstanding that proxies or votes in respect of the election of such
proposed nominee may have been received by the Corporation (which proxies and
votes shall be disregarded). Upon request by the Corporation, if any Stockholder
provides notice pursuant to Rule 14a-19(b) promulgated under the Exchange Act,
such Stockholder shall deliver to the Secretary, no later than five business
days prior to the applicable meeting date, documentation reasonably
satisfactory to the Corporation that the requirements of Rule 14a-19(a)(3)
promulgated under the Exchange Act have been satisfied.
(b) Special Meetings of Stockholders. In the event the Corporation calls a special
meeting of Stockholders for the purpose of electing one or more directors to
the Board of Directors, any such Stockholder entitled to vote in such election
of directors may nominate a person or persons (as the case may be) for election
to such position(s) as specified in the Corporation’s notice of meeting, if the
Stockholder’s notice required by Section
2.13(a)(ii) of these Bylaws (including the
completed and signed questionnaire, representation and agreement required
by Section
2.14 of these Bylaws and any other information,
documents, affidavits, or certifications required by the Corporation) shall be
delivered to the secretary at the principal executive offices of the
Corporation not earlier than the close of business on the one hundred twentieth
(120th) day prior to such special meeting and not later than the close of
business on the later of the ninetieth (90th) day prior to such special meeting
or the tenth (10th) day following the day on which public announcement is first
made of the date of the special meeting and of the nominees proposed by the
Board of Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment or postponement of a special meeting commence a
new time period (or extend any time period) for the giving of a Stockholder’s
notice as described above.
(c) General.
(i) Except
as otherwise expressly provided in any applicable rule or regulation
promulgated under the Exchange Act, only such persons who are nominated in
accordance with the procedures set forth in this Section
2.13 shall be eligible to be elected at an annual
or special meeting of Stockholders to serve as directors and only such business
shall be conducted at a meeting of Stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in this Section
2.13. Except as otherwise provided by law, the
chairman of the meeting shall have the power and duty (A) to determine whether
a nomination or any business proposed to be brought before the meeting was made
or proposed, as the case may be, in accordance with the procedures set forth in
this Section
2.13 (including whether the Stockholder or
beneficial owner, if any, on whose behalf the nomination or proposal is made or
solicited (or is part of a group which solicited) or did not so solicit, as the
case may be, proxies or votes in support of such Stockholder’s nominee or
proposal in compliance with such Stockholder’s representation as required
by Section
2.13(a)(ii)(D)(VI) of these Bylaws) and (B) if
any proposed nomination or business was not made or proposed in compliance with
this Section
2.13, to declare that such nomination shall be
disregarded or that such proposed business shall not be transacted.
Notwithstanding the foregoing provisions of this Section
2.13, unless otherwise required by law, if the
Stockholder (or a qualified representative of the Stockholder) does not appear
at the annual or special meeting of Stockholders to present a nomination or
proposed business, such nomination shall be disregarded and such proposed
business shall not be transacted, notwithstanding that proxies in respect of
such vote may have been received by the Corporation. For purposes of this Section
2.13, to be considered a qualified representative of
the Stockholder, a person must be a duly authorized officer, manager or partner
of such Stockholder or must be authorized by a writing executed by such
Stockholder or an electronic transmission delivered by such Stockholder to act
for such Stockholder as proxy at the meeting of Stockholders and such person
must produce such writing or electronic transmission, or a reliable
reproduction of the writing or electronic transmission, at the meeting of
Stockholders.
(ii) For purposes of this Section 2.13, “public announcement” shall include disclosure in a press release reported by the Dow Jones News Service, Associated Press or other national news service or in a document publicly filed by the Corporation with the SEC pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.
(iii) Notwithstanding the foregoing provisions of this Section 2.13, a Stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder with respect to the matters set forth in this Section 2.13; provided, however, that any references in these Bylaws to the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to this Section 2.13 (including clause (a)(ii)(C)) hereof and clause (b) hereof), and compliance with clauses (a)(ii)(C) and (b) of this Section 2.13 shall be the exclusive means for a Stockholder to make nominations or submit other business (other than, as provided in the penultimate sentence of clause (a)(i) hereof, business other than nominations brought properly under and in compliance with Rule 14a-8 and/or Rule 14a-19 promulgated under the Exchange Act, as each may be amended from time to time). Nothing in this Section 2.13 shall be deemed to affect any rights (x) of Stockholders to request inclusion of proposals or nominations in the Corporation’s proxy statement pursuant to applicable rules and regulations promulgated under the Exchange Act or (y) of the holders of any series of preferred stock of the Corporation to elect directors pursuant to any applicable provisions of the Articles of Incorporation.
(iv) A
Stockholder providing notice of its intent to propose business or to nominate a
person for election to the Board of Directors shall update and supplement its
notice to the Corporation, if necessary, so that the information provided or
required to be provided in such notice pursuant to this Section
2.13 shall be true and correct as of the record
date for notice of the meeting and as of the date that is ten (10) business
days prior to the meeting or any adjournment or postponement thereof, and such
update and supplement shall be delivered to, or mailed and received by, the
secretary at the principal executive offices of the Corporation not later than
five (5) business days after the record date for notice of the meeting (in the
case of the update and supplement required to be made as of such record date),
and not later than eight (8) business days prior to the date for the meeting
or, if practicable, any adjournment or postponement thereof (and, if not
practicable, on the first practicable date prior to the date to which the
meeting has been adjourned or postponed) (in the case of the update and supplement
required to be made as of ten (10) business days prior to the meeting or any
adjournment or postponement thereof).
(v) In addition, Stockholders who intend to
solicit proxies in support of director nominees other than the Corporation’s
nominees must also comply with the additional requirements of Rule 14a-19(b) of
the Exchange Act.
(vi) Notwithstanding the foregoing provisions
of this Section
2.13, a Stockholder shall also comply with all
applicable requirements of state and federal law, including the Exchange Act,
the Articles of Incorporation and these Bylaws with respect to any nomination,
proposal or other matter set forth in this Section
2.13.
Section
2.14 Submission
of Questionnaire, Representation and Agreement
To
be eligible to be a nominee for election or reelection as a director of the
Corporation, the candidate for nomination must have previously delivered (in
accordance with the time periods prescribed for delivery of notice under Section
2.13 of these Bylaws), to the secretary at the
principal executive offices of the Corporation, (a) a completed written
questionnaire (in a form provided by the Corporation) with respect to the
background, qualifications, stock ownership and independence of such proposed
nominee and (b) a written representation and agreement (in form provided by the
Corporation) that such candidate for nomination (i) is not and, if elected as a
director during his or her term of office, will not become a party to (A) any
agreement, arrangement or understanding with, and has not given and will not
give any commitment or assurance to, any person or entity as to how such
proposed nominee, if elected as a director of the Corporation, will act or vote
on any issue or question (a “Voting
Commitment”) or (B) any Voting Commitment that could limit or interfere
with such proposed nominee’s ability to comply, if elected as a director of the
Corporation, with such proposed nominee’s fiduciary duties under applicable
law, (ii) is not, and will not become a party to, any agreement, arrangement or
understanding with any person or entity other than the Corporation with respect
to any direct or indirect compensation or reimbursement for service as a
director and (iii) if elected as a director of the Corporation, will comply
with all applicable corporate governance, conflict of interest,
confidentiality, stock ownership and trading and other policies and guidelines
of the Corporation applicable to directors and in effect during such person’s
term in office as a director of the Corporation (and, if requested by any
candidate for nomination, the secretary shall provide to such candidate for
nomination all such policies and guidelines then in effect).
Section 2.15
Telephonic and Electronic Meetings.
Stockholders may participate in a meeting of the Stockholders through
electronic communications, videoconferencing, teleconferencing or other
available technology for which the Corporation shall have implemented
reasonable measures to: verify the identity of each person participating through
such means as a Stockholder, as the case may be; and provide the Stockholders a
reasonable opportunity to participate in the meeting and to vote on matters
submitted to the Stockholders, including an opportunity to communicate and to
read or hear the proceedings of the meeting in a substantially concurrent
manner with such proceedings. Participation in a meeting pursuant to this Section
2.15 constitutes presence in person at the meeting.
ARTICLE III.
DIRECTORS
Section
3.01 General
Powers; Performance of Duties
The
business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors, except to the extent properly delegated to officers of the Corporation or as otherwise
provided in Chapter 78 of the NRS or the Articles of Incorporation.
Section
3.02 Number, Tenure, and Qualifications
The
total number of directors constituting the entire Board of Directors shall be
fixed in the manner provided in the Articles of Incorporation. The number of
directors shall be no less than one (1) director and no more than fifteen (15)
directors. Directors need not be Stockholders or residents of the State of Nevada. Each director shall hold office until his
or her successor shall be elected or appointed and qualified or until his or
her earlier death, retirement, disqualification, resignation or removal. No
reduction of the number of directors shall have the effect of removing any
director prior to the expiration of his or her term of office. No provision of
this Section
3.02 shall be restrictive upon the right of the Board
of Directors to fill vacancies or upon the right of the Stockholders to remove
directors as is hereinafter provided.
Section
3.03 Chairman
of The Board
The
Board of Directors may elect a Chairman of the Board from the members of the
Board of Directors who shall preside at all meetings of the Board of Directors
and Stockholders at which he or she shall be present and shall have and may
exercise such powers as may, from time to time, be assigned to him or her by
the Board of Directors, these Bylaws or as may be provided by applicable law.
Section
3.04 Lead
Independent Director
In
the event that the Board of Directors elects a Chairman of the Board who is an
employee of the Corporation, the Board may also elect a Lead Independent
Director who shall preside at all meetings of the Board of Directors and
Stockholders at which he or she shall be present and the Chairman of the Board
is not present and shall have and may exercise such powers as may, from time to
time, be assigned to him or her by the Board of Directors, these Bylaws or as
may be provided by law.
Section
3.05 Removal
and Resignation of Directors
A
director may only
be
removed from the Board of Directors at a special meeting of the Stockholders called for that purpose by
a vote of the holders of no less than two-thirds (2/3) of the voting power of
the issued and outstanding stock entitled to vote; provided, that if a director is
elected by the holders of a class or series of shares, only the vote of the
holders of such class or series, and not the votes of the outstanding shares as
a whole, shall be required to remove such director. Any director may
resign effective upon giving written notice, unless the notice specifies a
later time for effectiveness of such resignation, to the Chairman of the Board,
if any, the chief executive
officer
or the secretary, or in the
absence of all of them, any other officer of the Corporation.
Section
3.06 Vacancies; Newly Created Directorships.
Unless
otherwise provided in the Articles of Incorporation, vacancies and newly
created directorships, whether resulting from an increase in the size of the
Board of Directors or due to the death, resignation or removal of a director or
otherwise, may be filled by the affirmative vote of a majority of the remaining
directors, even if less than a quorum. A director elected to fill a vacancy
shall hold office for the unexpired term of his or her predecessor in office
and until his or her successor is duly elected and qualified. No decrease in
the number of directors constituting the Board of Directors shall shorten the
term of any incumbent directors.
Section
3.07 Regular
Meetings
Regular
meetings of the Board of Directors may be held at such places, if any, within
or without the State of Nevada and at such times as the Board of Directors may
from time to time determine.
Section
3.08 Special
Meetings
Except
as otherwise required by law, and subject to any rights of the holders of
preferred stock, special meetings of the Board of Directors may be called only
by the Chairman of the Board, if any, or if there be no Chairman of the Board,
by any of the chief executive officer, if any, the president or the secretary,
and shall be called by the Chairman of the Board, if any, the chief executive
officer, if any, the president or the secretary upon the request of at least a
majority of the authorized number of directors. If the Chairman of the Board,
or if there be no Chairman of the Board, each of the chief executive officer,
if any, president and secretary, refuses or neglects to call such special
meeting, a special meeting may be called by a written request signed by the
Lead Independent Director or at least a majority of the directors in office.
Section
3.09 Place
of Meetings
Any
regular or special meeting of the directors of the Corporation may be held at
such place as the Board of Directors, or in the absence of such designation, as
the notice calling such meeting, may designate. A waiver of notice signed by
the directors may designate any place for the holding of such meeting.
Section
3.10 Notice
of Meetings
Except
as otherwise provided in Section
3.07 of these Bylaws, there shall be delivered to
each director at the address appearing for him or her on the records of the
Corporation, at least twenty-four (24) hours before the time of such
meeting, a copy of a written notice of any meeting (a) by delivery of such
notice personally, (b) by mailing such notice postage prepaid, (c) by
facsimile, (d) by overnight courier, or (e) by electronic
transmission or electronic writing, including, but not limited to, email. If
mailed to an address inside the United States, the notice shall be deemed
delivered two (2) business days following the date the same is deposited
in the United States mail, postage prepaid. If mailed to an address outside the
United States, the notice shall be deemed delivered four (4) business days
following the date the same is deposited in the United States mail, postage
prepaid. If sent via facsimile, by electronic transmission or electronic
writing, including, but not limited to, email, the notice shall be deemed
delivered on the date sent to the member of the Board of Directors at his or her facsimile or email address as it appears on the records of the Corporation. If sent via overnight courier, the notice shall be deemed delivered the business day following the delivery of such notice to the courier. If the address of any director is incomplete or does not appear upon the records of the Corporation it will be sufficient to address any notice to such director at the registered office of the Corporation. Any director may waive notice of any meeting, and the attendance of a director at a meeting and oral consent entered on the minutes of such meeting shall constitute waiver of notice of the meeting unless such director objects, prior to the transaction of any business, that the meeting was not lawfully called, noticed or convened. Attendance for the express purpose of objecting to the transaction of business thereat because the meeting was not properly called or convened shall not constitute presence or a waiver of notice for purposes hereof. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting.
Section 3.11
Quorum; Adjourned
Meetings
(a) A majority of the directors then in office, at a meeting duly
assembled, is necessary to constitute a quorum for the transaction of business; provided
that, solely for the purposes of filling vacancies pursuant to Section
3.06 of these Bylaws, a meeting of the Board of
Directors may be held if a majority of the directors then in office participate
in such meeting.
(b) At any meeting of the Board of Directors
where a quorum is not present, a majority of those present may adjourn, from
time to time, until a quorum is present, and no notice of such adjournment
shall be required. At any adjourned meeting where a quorum is present, any
business may be transacted which could have been transacted at the meeting
originally called.
Section
3.12 Manner
of Acting; Presumption of Assent
Except
in cases in which the Articles of Incorporation, these Bylaws or applicable law
otherwise provides, a majority of the votes entitled to be cast by the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors. A director of the Corporation who is present at a
meeting of the Board of Directors at which action on any corporate matter is
taken shall be presumed to have assented to the action unless his dissent shall
be entered in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as secretary of the meeting before the
adjournment thereof or shall forward any dissent by certified or registered
mail to the secretary of the Corporation immediately after the adjournment of
the meeting. Such right to dissent shall not apply to a director who voted in
favor of such action.
Section
3.13 Telephonic and Electronic Meetings
Members
of the Board of Directors or of any committee designated by the Board of
Directors may participate in a meeting of the Board of Directors or such
committee through electronic communications, videoconferencing,
teleconferencing or other available technology for which the Corporation shall
have implemented reasonable measures to: verify the identity of each person
participating through such means as a director or committee, as the case may
be; and provide the directors or members a reasonable opportunity to
participate in the meeting and to vote on matters submitted to the directors or
members, as the case may be, including an opportunity to communicate and to
read or hear the proceedings of the meeting in a substantially concurrent
manner with such proceedings. Participation in a meeting pursuant to this Section
3.13 constitutes presence in person at the meeting.
Section
3.14 Action
Without Meeting
Unless otherwise
restricted by the Articles or these Bylaws, 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 members of the Board of Directors or
committee, as the case may be, consent thereto in writing or by electronic
transmission (as defined under Nevada Law) and the writing or writings or
electronic transmission or transmissions are filed with the minutes of
proceedings of the Board of Directors or committee. Such filing shall be in
paper form if the minutes are maintained in paper form and shall be in
electronic form if the minutes are maintained in electronic form.
Section
3.15 Powers
and Duties
(a) Except as otherwise restricted by the
laws of the State of Nevada or the Articles of Incorporation, the Board of
Directors has full control over the business and affairs of the Corporation.
The Board of Directors may delegate any of its authority to manage, control or
conduct the business of the Corporation to any standing or special committee in
accordance with Section
3.16, or to any officer or agent, and to appoint any
persons to be agents of the Corporation with such powers, including the power
to sub-delegate, and upon such terms as may be deemed fit.
(b) The Board of Directors, in its
discretion, or the officer of the Corporation presiding at a meeting of
Stockholders, in his or her discretion, may (i) require that any votes
cast at such meeting shall be cast by written ballot, and/or (ii) submit
any contract or act for approval or ratification at any annual meeting of the
Stockholders or any special meeting properly called and noticed for the purpose
of considering any such contract or act, provided a quorum is
present.
Section
3.16 Committees
Committees
designated and appointed by the Board of Directors shall function subject to
and in accordance with the following regulations and procedures:
(a) Designation and Appointment. The
Board of Directors may designate and appoint one or more committees under such
name or names and for such purpose or function as may be deemed appropriate or
under no name.
(b) Members; Alternate Members; Terms.
Each committee thus designated and appointed shall consist of one or more of
the directors of the Corporation. The Board of Directors may designate one or
more of its members as alternate members of any committee, who may, subject to
any limitations imposed by the entire Board of Directors, replace absent or
disqualified members at any meeting of that committee. If the Board of
Directors has not designated alternate members to a committee, then in the
absence or disqualification of a member of a committee from a meeting, the
member or members thereof present at such meeting and not disqualified from
voting, whether or not he, she or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at such meeting in the
place of any such absent or disqualified member (“substitute member”). The members or alternate members of any
such committee shall serve at the pleasure of and subject to the discretion of
the Board of Directors.
(c) Authority. Each committee, to the
extent provided in the resolution of the Board of Directors creating same,
shall have and may exercise such of the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation as
the Board of Directors may direct and delegate, except, however, those matters which
are required by statute to be reserved unto or acted upon by the entire Board
of Directors.
(d) Records. Each such committee
shall keep and maintain regular records or minutes of its meetings and report
the same to the Board of Directors when required.
(e) Change in Number. The number of
members or alternate members of any committee appointed by the Board of
Directors, as herein provided, may be increased or decreased from time to time
by appropriate resolution adopted by of the Board of Directors.
(f) Vacancies. Vacancies in the
membership of any committee designated and appointed hereunder shall be filled
by the Board of Directors, at a regular or special meeting of the Board of
Directors, in a manner consistent with the provisions of this Section
3.16.
(g) Removal. Any member or alternate
member of any committee appointed hereunder may be removed by the Board of
Directors by the Board of Directors, whenever in its judgment the best interests
of the Corporation will be served thereby.
(h) Meetings. The time, place and
notice (if any) of committee meetings shall be determined by the members of
such committee.
(i) Quorum; Requisite Vote. At
meetings of any committee appointed hereunder, a majority of the number of
members designated by the Board of Directors to such committee shall constitute
a quorum for the transaction of business. For purposes of determining the
presence of a quorum, alternate members or substitute members acting in the place
of members at a meeting shall be counted to the same extent as the members of
the committee they are replacing; provided, however,
that for purposes of determining the presence of a quorum, alternate members
and substitute members (whether or not acting in the place of members at a
meeting) shall not be included in the number of members designated by the Board
of Directors to such committee. The act of a majority of the members (and to if
acting in the place of members, alternate members or substitute members) of the
committee present at any meeting at which a quorum is present shall be the act
of such committee, except as otherwise specifically provided by statute. If a
quorum is not present at a meeting of such committee, the members of such
committee present may adjourn the meeting from time to time, without notice
other than an announcement at the meeting, until a quorum is present.
(j) Compensation. Unless otherwise
restricted by the Articles of Incorporation or these Bylaws, compensation for
members and alternate members of any committee appointed pursuant to the
authority hereof may be authorized by the Board of Directors pursuant to the
provisions of Section
3.17 hereof or by a committee specifically authorized
by the Board of Directors to authorize compensation.
(k) Action Without Meeting. Unless
otherwise restricted by the Articles of Incorporation or these Bylaws, any
action required or permitted to be taken at a meeting of any committee may be
taken without a meeting if a consent in writing, setting forth the action so
taken, is signed by all members of such committee. Such consent shall have the
same force and effect as a unanimous vote at a meeting. The signed consent, or
a signed copy, shall become a part of the record of such committee.
Section
3.17 Compensation
The
Board of Directors, without regard to personal interest, may establish the
compensation of directors for services in any capacity, including serving as a
member of a committee of the Board of Directors. If the Board of Directors establishes the
compensation of directors pursuant to this subsection, such compensation is
presumed to be fair to the Corporation unless proven unfair by a preponderance
of the evidence. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed
sum for attendance at each meeting of the Board of Directors or a stated salary
or other compensation as a director. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor. Any director of the Corporation may decline any or all
such compensation payable to such director in his or her discretion.
Section
3.18 Organization
Meetings
of the Board of Directors shall be presided over by the Chairman of the Board,
or in the absence of the Chairman of the Board by the Lead Independent
Director, or in his or her absence by a chairman chosen at the meeting. The
secretary, or in the absence of the secretary an assistant secretary, shall act
as secretary of the meeting, but in the absence of the secretary and any
assistant secretary the chairman of the meeting may appoint any person to act
as secretary of the meeting. The order of business at each such meeting shall
be as determined by the chairman of the meeting.
ARTICLE IV.
OFFICERS
Section
4.01 Election
The
Board of Directors shall elect and appoint a president, a secretary and a
treasurer. Said officers shall serve until their respective successors are
elected and appointed and shall qualify or until their earlier resignation or
removal. The Board of Directors may from time to time, by resolution, elect or
appoint such other officers and agents as it may deem advisable, who shall hold
office at the pleasure of the Board of Directors, and shall have such powers
and duties and be paid such compensation as may be directed by the Board of
Directors. Any individual may hold two or more offices.
Section
4.02 Removal;
Resignation
Any
officer or agent elected or appointed by the Board of Directors may be removed
by the Board of Directors with or without cause. Any officer may resign at any
time upon written notice to the Corporation. Any such removal or resignation
shall be subject to the rights, if any, of the respective parties under any
contract between the Corporation and such officer or agent.
Section
4.03 Vacancies
If
any vacancy occurs in any office of the Corporation, the Board of Directors may
appoint a successor to fill such vacancy for the remainder of the unexpired
term and until a successor shall have been duly chosen and qualified.
Section
4.04 Chairman
of The Board.
The
Board of Directors may elect a Chairman of the Board from the members of the
Board of Directors who shall (a) preside at all meetings of the Board of
Directors and Stockholders at which he or she shall be present, (b) advise and
counsel the chief executive officer and the other officers of the Corporation
and (c) have and may exercise such powers as may, from time to time, be
assigned to him or her by the Board of Directors, these Bylaws or as may be
provided by applicable law. The Board of Directors, in its discretion, may
designate a Chairman of the Board as either a Non-Executive Chairman of the
Board, who shall not be considered an employee or officer of the Corporation by
virtue of the Non-Executive Chairman position, or an Executive Chairman of the
Board, who shall be considered a full-time employee and executive officer of
the Corporation by virtue of the Executive Chairman position.
Section
4.05 Chief
Executive Officer
The
Board of Directors may elect a chief executive officer who, subject to the
supervision and control of the Board of Directors, shall have the ultimate
responsibility for the management and control of the business and affairs of
the Corporation, and shall perform such other duties and have such other powers
which are delegated to him or her by the Board of Directors, these Bylaws or as
may be provided by law.
Section
4.06 President
The
president, subject to the supervision and control of the Board of Directors,
shall in general actively supervise and control the business and affairs of the
Corporation. The president shall keep the Board of Directors fully informed as
the Board of Directors may request and shall consult the Board of Directors
concerning the business of the Corporation. The president shall perform such
other duties and have such other powers which are delegated and assigned to him
or her by the Board of Directors if any, these Bylaws or as may be provided by
law.
Section
4.07 Chief
Financial Officer
The
Board of Directors may elect a Chief Financial Officer. The Chief Financial
Officer shall in general have overall supervision of the financial operations
of the Corporation. The Chief Financial Officer shall perform such other duties and have such
other powers which are delegated and assigned to him or her by the Board of
Directors if any, these Bylaws or as may be provided by law.
Section
4.08 Vice
Presidents
The
Board of Directors may elect one or more vice presidents. In the absence or
disability of the president, or at the president’s request, the vice president
or vice presidents, in order of their rank as fixed by the Board of Directors,
and if not ranked, the vice presidents in the order designated by the Board of
Directors, or in the absence of such designation, in the order designated by
the president, shall perform all of the duties of the president, and when so
acting, shall have all the powers of, and be subject to all the restrictions on
the president. Each vice president shall perform such other duties and have
such other powers which are delegated and assigned to him or her by the Board
of Directors, the president, these Bylaws or as may be provided by law.
Section
4.09 Secretary
The
secretary shall attend all meetings of the Stockholders, the Board of Directors
and any committees, and shall keep, or cause to be kept, the minutes of
proceeds thereof in books provided for that purpose. He or she shall keep, or
cause to be kept, a register of the Stockholders and shall be responsible for
the giving of notice of meetings of the Stockholders, the Board of Directors
and any committees, and shall see that all notices are duly given in accordance
with the provisions of these Bylaws or as required by law. The secretary shall
be custodian of the corporate seal, the records of the Corporation, the stock
certificate books, transfer books and stock ledgers, and such other books and
papers as the Board of Directors or appropriate committee may direct. The
secretary shall perform all other duties commonly incident to his or her office
and shall perform such other duties which are assigned to him or her by the
Board of Directors, the chief executive officer, if any, the president, these
Bylaws or as may be provided by law.
Section
4.10 Assistant
Secretaries
An
assistant secretary shall, at the request of the secretary, or in the absence
or disability of the secretary, perform all the duties of the secretary. He or
she shall perform such other duties as are assigned to him or her by the Board
of Directors, the chief executive officer, if any, the president, these Bylaws
or as may be provided by law.
Section 4.11
Treasurer
The
treasurer, subject to the order of the Board of Directors, shall have the care
and custody of, and be responsible for, all of the money, funds, securities,
receipts and valuable papers, documents and instruments of the Corporation, and
all books and records relating thereto. The treasurer shall keep, or cause to
be kept, full and accurate books of accounts of the Corporation’s transactions,
which shall be the property of the Corporation, and shall render financial
reports and statements of condition of the Corporation when so requested by the
Board of Directors, the Chairman of the Board, if any, the chief executive
officer, if any, or the president. The treasurer shall perform all other duties
commonly incident to his or her office and such other duties as may, from time
to time, be assigned to him or her by the Board of Directors, the chief
executive officer, if any, the president, these Bylaws or as may be provided by
law. The treasurer shall, if required by the Board of Directors, give bond to
the Corporation in such sum and with such security as shall be approved by the
Board of Directors for the faithful performance of all the duties of the
treasurer and for restoration to the Corporation, in the event of the
treasurer’s death, resignation, retirement or removal from office, of all
books, records, papers, vouchers, money and other property in the treasurer’s
custody or control and belonging to the Corporation. The expense of such bond
shall be borne by the Corporation. If a chief financial officer of the
Corporation has not been appointed, the treasurer may be deemed the chief
financial officer of the Corporation.
Section
4.12 Assistant
Treasurers
An
assistant treasurer shall, at the request of the treasurer, or in the absence
or disability of the treasurer, perform all the duties of the treasurer. He or
she shall perform such other duties which are assigned to him or her by the
Board of Directors, the chief executive officer, the president, the treasurer,
these Bylaws or as may be provided by law. The Board of Directors may require
an assistant treasurer to give a bond to the Corporation in such sum and with
such security as it may approve, for the faithful performance of the duties of
the assistant treasurer, and for restoration to the Corporation, in the event
of the assistant treasurer’s death, resignation, retirement or removal from
office, of all books, records, papers, vouchers, money and other property in
the assistant treasurer’s custody or control and belonging to the Corporation.
The expense of such bond shall be borne by the Corporation.
Section
4.13 Other
Officers.
The
Board of Directors may appoint, or empower the Chief Executive Officer, or any
other duly appointed officer of the Corporation, to appoint, such other
officers and agents as the business of the Corporation may require. Each of
such officers and agents shall hold office for such period, have such
authority, and perform such duties as are provided in these Bylaws or as the
Board, Chief Executive Officer, or other designated officer may from time to
time determine.
Section 4.14
Execution of
Negotiable Instruments, Deeds and Contracts
All
checks, drafts, notes, bonds, bills of exchange, and orders for the payment of
money of the Corporation; all deeds, mortgages, proxies, powers of attorney and
other written contracts, documents, instruments and agreements to which the
Corporation shall be a party; and all assignments or endorsements of stock
certificates, registered bonds or other securities owned by the Corporation
shall be signed in the name of the Corporation by such officers or other
persons as the Board of Directors may from time to time designate. The Board of
Directors may authorize the use of the facsimile signatures of any such
persons. Any officer of the Corporation shall be authorized to attend, act and
vote, or designate another officer or an agent of the Corporation to attend,
act and vote, at any meeting of the owners of any entity in which the
Corporation may own an interest or to take action by written consent in lieu
thereof. Such officer or agent, at any such meeting or by such written action,
shall possess and may exercise on behalf of the Corporation any and all rights
and powers incident to the ownership of such interest.
ARTICLE V.
CAPITAL STOCK
Section
5.01 Issuance
Shares
of the Corporation’s authorized stock shall, subject to any provisions or
limitations of the laws of the State of Nevada, the Articles of Incorporation
or any contracts or agreements to which the Corporation may be a party, be
issued in such manner, at such times, upon such conditions and for such
consideration as shall be prescribed by the Board of Directors.
Section
5.02 Stock
Certificates and Uncertificated Shares
(a) Every holder of stock in the Corporation
shall be entitled to have a certificate signed by or in the name of the
Corporation by the chief executive officer, if any, the president or a vice
president, and by the chief financial officer, secretary or an assistant secretary, of the
Corporation (or any other two officers or agents so authorized by the Board of
Directors), certifying the number of shares of stock owned by him, her or it in
the Corporation; provided, however, that shares of some
or all of any or all classes or series of the Corporation’s stock shares of
capital stock of the Corporation may also be uncertificated. Any such issuance
of uncertificated shares shall have no effect on existing certificates for
shares until such certificates are surrendered to the Corporation, or on the
respective rights and obligations of the Stockholders. Whenever such certificate
is countersigned or otherwise authenticated by a transfer agent or a transfer
clerk and by a registrar (other than the Corporation), then a facsimile of the
signatures of any corporate officers or agents, the transfer agent, transfer
clerk or the registrar of the Corporation may be printed or lithographed upon
the certificate in lieu of the actual signatures. In the event that any officer
or officers who have signed, or whose facsimile signatures have been used on
any certificate or certificates for stock cease to be an officer or officers
because of death, resignation or other reason, before the certificate or
certificates for stock have been delivered by the Corporation, the certificate
or certificates may nevertheless be adopted by the Corporation and be issued
and delivered as though the person or persons who signed the certificate or
certificates, or whose facsimile signature or signatures have been used
thereon, had not ceased to be an officer or officers of the Corporation.
(b) Within a reasonable time after the
issuance or transfer of uncertificated shares, the Corporation shall send to
the registered owner thereof a written statement certifying the number of
shares owned by him, her or it in the Corporation and, at least annually
thereafter, the Corporation shall provide to such Stockholders of record
holding uncertificated shares, a written statement confirming the information
contained in such written statement previously sent. Except as otherwise
expressly provided by law, the rights and obligations of the Stockholders shall
be identical whether or not their shares of stock are represented by
certificates.
(c) Each certificate representing shares
shall state the following upon the face thereof: the name of the state of the
Corporation’s organization; the name of the person to whom issued; the number
and class of shares and the designation of the series, if any, which such
certificate represents; the par value of each share, if any, represented by
such certificate or a statement that the shares are without par value.
Certificates of stock shall be in such form consistent with law as shall be
prescribed by the Board of Directors. No certificate shall be issued until the
shares represented thereby are fully paid. In addition to the foregoing, all
certificates evidencing shares of the Corporation’s stock or other securities
issued by the Corporation shall contain such legend or legends as may from time
to time be required by the Chapter 78 of the NRS and/or such other federal,
state or local laws or regulations then in effect.
(d) The Corporation may treat as absolute
owners of shares the person in whose name the shares stand of record as if that
person had full competency, capacity and authority to exercise all rights of
ownership, despite any knowledge or notice to the contrary or any description
indicating a representative, pledge or other fiduciary relation, or any
reference to any other instrument or to the rights of any other person
appearing upon its record or upon the share certificate. However, the Corporation
may treat any person furnishing proof of his appointment as a fiduciary as if
he were the holder of record of the shares.
Section
5.03 Surrendered;
Lost or Destroyed Certificates
The
Corporation may issue a new certificate of stock in the place of any
certificate theretofore issued by it, alleged to have been lost, stolen, or
destroyed, and the Corporation may require the owner of the lost, stolen, or
destroyed certificate, or his legal representative, to give the Corporation a
bond sufficient to indemnify it against any claim that may be made against it
on account of the alleged loss, theft, or destruction of any such certificate
or the issuance of such new certificate.
Section 5.04
Replacement
Certificate
When
the Articles of Incorporation are amended in any way affecting the statements
contained in the certificates for outstanding shares of capital stock of the
Corporation or it becomes desirable for any reason, in the discretion of the
Board of Directors, including, without limitation, the merger of the Corporation
with another Corporation or the conversion or reorganization of the
Corporation, to cancel any outstanding certificate for shares and issue a new
certificate therefor conforming to the rights of the holder, the Board of
Directors may order any holders of outstanding certificates for shares to
surrender and exchange the same for new certificates within a reasonable time
to be fixed by the Board of Directors. The order may provide that a holder of
any certificate(s) ordered to be surrendered shall not be entitled to vote,
receive distributions or exercise any other rights of Stockholders of record
until the holder has complied with the order, but the order operates to suspend
such rights only after notice and until compliance.
Section
5.05 Transfer
of Shares
No transfer
of stock shall be valid as against the Corporation except on surrender and
cancellation of the certificates therefor accompanied by an assignment or
transfer by the registered owner made either in person or under assignment,
unless such requirement is waived by the Board of Directors. Whenever any transfer shall be expressly
made for collateral security and not absolutely, the collateral nature of the
transfer shall be reflected in the entry of transfer in the records of the
Corporation. Subject to the provisions hereof, the Corporation shall register
the transfer of a certificate evidencing shares of its capital stock presented
to it for transfer if, unless waived by the Board of Directors:
(a) Endorsement. Upon surrender of
the certificate to the Corporation (or its transfer agent, as the case may be)
for transfer, the certificate (or an appended stock power) is properly endorsed
by the registered owner, or by his duly authorized legal representative or
attorney-in-fact, with proper written evidence of the authority and appointment
of such representative, if any, accompanying the certificate;
(b) Guaranty and Effectiveness of
Signature. The signature of such registered owner or his legal
representative or attorney-in-fact, as the case may be, has been guaranteed by
a national banking association or member of the New York Stock Exchange, and
reasonable assurance in a form satisfactory to the Corporation is given that
such endorsements are genuine and effective;
(c) Adverse Claims. The Corporation
has no notice of an adverse claim or has otherwise discharged any duty to
inquire into such a claim;
(d) Collection of Taxes. Any
applicable law (local, state or federal) relating to the collection of taxes
relative to the transaction has been complied with; and
(e) Additional Requirements Satisfied.
Such additional conditions and documentation as the Corporation (or its
transfer agent, as the case may be) shall reasonably require, including without
limitation thereto, the delivery with the surrender of such stock certificate
or certificates of proper evidence of succession, assignment or other authority
to obtain transfer thereof, as the circumstances may require, and such legal
opinions with reference to the requested transfer as shall be required by the Corporation
(or its transfer agent) pursuant to the provisions of these Bylaws and
applicable law, shall have been satisfied.
Section
5.06 Transfer
Agent; Registrars
The
Board of Directors may appoint one or more transfer agents, transfer clerks and
registrars of transfer and may require all certificates for shares of stock to
bear the signature of such transfer agents, transfer clerks and/or registrars
of transfer.
Section
5.07 Miscellaneous
The
Board of Directors shall have the power and authority to make such rules and
regulations not inconsistent herewith as it may deem expedient concerning the
issue, transfer, and registration of certificates for shares of the
Corporation’s stock.
ARTICLE VI.
DISTRIBUTIONS
Distributions
may be declared, subject to the provisions of the laws of the State of Nevada
and the Articles of Incorporation, by the Board of Directors and may be paid in
cash, property, shares of corporate stock, or any other medium. The Board of
Directors may fix in advance a record date, as provided in Section
2.05 hereof, prior to the distribution for the
purpose of determining Stockholders entitled to receive any distribution.
ARTICLE VII.
RECORDS; REPORTS; SEAL; AND FINANCIAL MATTERS
Section
7.01 Records
All
original records of the Corporation shall be kept at the principal office of
the Corporation by or under the direction of the secretary or at such other
place or by such other person as may be prescribed by these Bylaws or the Board
of Directors.
Section
7.02 Corporate
Seal
The
Board of Directors may, by resolution, authorize a seal, and the seal may be
used by causing it, or a facsimile, to be impressed or affixed or reproduced or
otherwise. Except when otherwise specifically provided herein, any officer of
the Corporation shall have the authority to affix the seal to any document
requiring it.
Section
7.03 Fiscal
Year-End
The
fiscal year-end of the Corporation shall be such date as may be fixed from time
to time by resolution of the Board of Directors.
ARTICLE VIII.
INDEMNIFICATION
Section
8.01 Indemnification and Insurance
(a)Indemnification
of Directors and Officers.
(i) For
purposes of this Article, (A) ”Indemnitee”
shall mean each director or officer who was or is a party to, or is threatened
to be made a party to, or is otherwise involved in, any Proceeding (as
hereinafter defined), by reason of the fact that he or she is or was a director
or officer of the Corporation or member, manager or managing member of a
predecessor limited liability company or affiliate of such limited liability
company or is or was serving in any capacity at the request of the Corporation
as a director, officer, employee, agent, partner, member, manager or fiduciary
of, or in any other capacity for, another corporation or any partnership, joint
venture, limited liability company, trust, or other enterprise; and (B) ”Proceeding” shall mean any
threatened, pending, or completed action, suit or proceeding (including,
without limitation, an action, suit or proceeding by or in the right of the
Corporation), whether civil, criminal, administrative, or investigative.
(ii) Each
Indemnitee shall be indemnified and held harmless by the Corporation to the
fullest extent permitted by Nevada law, against all expense, liability and loss
(including, without limitation, attorneys’ fees, judgments, fines, taxes,
penalties, and amounts paid or to be paid in settlement) reasonably incurred or
suffered by the Indemnitee in connection with any Proceeding; provided
that such Indemnitee either is not liable pursuant to NRS 78.138 or
acted in good faith and in a manner such Indemnitee reasonably believed to be
in or not opposed to the best interests of the Corporation and, with respect to
any Proceeding that is criminal in nature, had no reasonable cause to believe
that his or her conduct was unlawful. The termination of any Proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere
or its equivalent, does not, of itself, create a presumption that the Indemnitee is liable pursuant to NRS 78.138 or did not act in good faith and in a manner in which he or she reasonably believed to be in or not opposed to the best interests of the Corporation, or that, with respect to any criminal proceeding he or she had reasonable cause to believe that his or her conduct was unlawful. The Corporation shall not indemnify an Indemnitee for any claim, issue or matter as to which the Indemnitee has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the Corporation or for any amounts paid in settlement to the Corporation, unless and only to the extent that the court in which the Proceeding was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts as the court deems proper. Except as so ordered by a court and for advancement of expenses pursuant to this Section 8.01, indemnification may not be made to or on behalf of an Indemnitee if a final adjudication establishes that his or her acts or omissions involved intentional misconduct, fraud or a knowing violation of law and was material to the cause of action. Notwithstanding anything to the contrary contained in these Bylaws, no director or officer may be indemnified for expenses incurred in defending any threatened, pending, or completed action, suit or proceeding (including without limitation, an action, suit or proceeding by or in the right of the Corporation), whether civil, criminal, administrative or investigative, that such director or officer incurred in his or her capacity as a Stockholder.
(iii) Indemnification pursuant to this Section 8.01 shall continue as to an Indemnitee who has ceased to be a director or officer of the Corporation or member, manager or managing member of a predecessor limited liability company or affiliate of such limited liability company or a director, officer, employee, agent, partner, member, manager or fiduciary of, or to serve in any other capacity for, another corporation or any partnership, joint venture, limited liability company, trust, or other enterprise and shall inure to the benefit of his or her heirs, executors and administrators.
(iv) The expenses of Indemnitees must be paid by the Corporation or through insurance purchased and maintained by the Corporation or through other financial arrangements made by the Corporation, as they are incurred and in advance of the final disposition of the Proceeding, upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that he or she is not entitled to be indemnified by the Corporation. To the extent that a director or officer of the Corporation is successful on the merits or otherwise in defense of any Proceeding, or in the defense of any claim, issue or matter therein, the Corporation shall indemnify him or her against expenses, including attorneys’ fees, actually and reasonably incurred in by him or her in connection with the defense.
(b) Indemnification of Employees and
Other Persons. The Corporation may, by action of its Board of Directors and
to the extent provided in such action, indemnify employees and other persons as
though they were Indemnitees.
(c) Non-Exclusivity of Rights. The
rights to indemnification provided in this Article VIII shall not be
exclusive of any other rights that any person may have or hereafter acquire
under any statute, provision of the Articles of Incorporation or these Bylaws,
agreement, vote of Stockholders or directors, or otherwise.
(d) Insurance. The Corporation may
purchase and maintain insurance or make other financial arrangements on behalf
of any Indemnitee for any liability asserted against him or her and liability
and expenses incurred by him or her in his or her capacity as a director,
officer, employee, member, managing member or agent, or arising out of his or
her status as such, whether or not the Corporation has the authority to
indemnify him or her against such liability and expenses.
(e) Other Financial Arrangements. The
other financial arrangements which may be made by the Corporation may include
the following: (i) the creation of a trust fund; (ii) the
establishment of a program of self-insurance; (iii) the securing of its
obligation of indemnification by granting a security interest or other lien on
any assets of the Corporation; (iv) the establishment of a letter of
credit, guarantee or surety. No financial arrangement made pursuant to this
subsection may provide protection for a person adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable for
intentional misconduct, fraud, or a knowing violation of law, except with
respect to advancement of expenses or indemnification ordered by a court.
(f) Other Matters Relating to Insurance
or Financial Arrangements. Any insurance or other financial arrangement
made on behalf of a person pursuant to this Section 8.01 may be provided by the Corporation or any
other person approved by the Board of Directors, even if all or part of the
other person’s stock or other securities is owned by the Corporation. In the
absence of fraud (i) the decision of the Board of Directors as to the
propriety of the terms and conditions of any insurance or other financial
arrangement made pursuant to this Section
8.01 and the choice of the person to provide the
insurance or other financial arrangement is conclusive; and (ii) the
insurance or other financial arrangement is not void or voidable and does not
subject any director approving it to personal liability for his action; even if
a director approving the insurance or other financial arrangement is a
beneficiary of the insurance or other financial arrangement.
Section
8.02 Amendment
Notwithstanding
any other provision of these Bylaws relating to their amendment generally, any
repeal or amendment of this Article VIII which is
adverse to any director or officer shall apply to such director or officer only
on a prospective basis, and shall not limit the rights of an Indemnitee to
indemnification with respect to any action or failure to act occurring prior to
the time of such repeal or amendment.
ARTICLE IX.
CHANGES IN NEVADA LAW
References
in these Bylaws to Nevada law or the NRS or to any provision thereof shall be
to such law as it existed on the date these Bylaws were adopted or as such law
thereafter may be changed; provided that (a) in the case
of any change which expands the liability of directors or officers or limits
the indemnification rights or the rights to advancement of expenses which the
Corporation may provide in Article VIII hereof, the
rights to limited liability, to indemnification and to the advancement of
expenses provided in the Articles of Incorporation and/or these Bylaws shall
continue as theretofore to the extent permitted by law; and (b) if such
change permits the Corporation, without the requirement of any further action
by Stockholders or directors, to limit further the liability of directors or
limit the liability of officers or to provide broader indemnification rights or
rights to the advancement of expenses than the Corporation was permitted to
provide prior to such change, then liability thereupon shall be so limited and
the rights to indemnification and the advancement of expenses shall be so
broadened to the extent permitted by law.
ARTICLE X.
GENERAL PROVISIONS
Section
10.01 Evidence
of Authority.
A certificate by the secretary, or an assistant secretary,
or a temporary secretary, as to
any action taken by the Stockholders,
directors, a committee or any
officer of representative of the Corporation
shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action.
Section
10.02 Articles
of Incorporation.
All references
in these Bylaws to the Articles of Incorporation shall be deemed to refer to
the Articles of Incorporation of the Corporation, as amended and, if
applicable, amended and restated, in effect from time to time.
Section
10.03 Pronouns.
All pronouns
used in these Bylaws shall be deemed to refer to the masculine, feminine or
neuter, singular or plural, as the identity of the person or persons may
require.
ARTICLE XI.
AMENDMENTS
The Board of Directors are expressly empowered to adopt, amend, or
repeal the Bylaws of the Corporation. The Stockholders also shall have power to
adopt, amend, or repeal the Bylaws of the Corporation.
SECRETARY’S CERTIFICATE
OF ADOPTION OF
AMENDED AND RESTATED
BYLAWS
OF
GLOBAL ACQUISITIONS CORPORATION
I, the
undersigned, do hereby certify:
1. That I am the duly elected
and acting Secretary of Global Acquisitions Corporation, a Nevada
corporation (the “Corporation”).
2. That the foregoing Amended
and Restated Bylaws constitute the Bylaws of the Corporation as adopted by the
Board
of Directors of the Corporation
as of January 7, 2025.
IN WITNESS WHEREOF, I have hereunto subscribed my name as of
January 9, 2025.
/s/ Ronald S. Boreta
Ronald S. Boreta, Secretary
Amended and Restated Bylaws of Global Acquisitions Corporation Page 31 of 31 |
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Global Acquisitions (PK) (USOTC:AASP)
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