SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
Filed by the Registrant |X|
Filed by a Party other than the Registrant |_|
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only
(as permitted by Rule 14a-6(e)(2)
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to ss.240.14a-11(c) or ss.240.14a-12
EYE DYNAMICS, INC.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
PAYMENT OF FILING FEE (CHECK THE APPROPRIATE BOX):
|X| NO FEE REQUIRED
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1. Title of each class of securities to which transaction applies:
2. Aggregate number of securities to which transaction applies:
3. Per unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was determined):
4. Proposed maximum aggregate value transaction:
5. Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration number, or the Form or
Schedule and the date of its filing.
1. Amount previously paid:
2. Form, Schedule or Registration Statement No.:
3. Filing Party:
4. Date Filed:
EYE DYNAMICS, INC.
2301 205th St., Suite 106
Torrance, CA 90501
NOTICE OF 2005 ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON SEPTEMBER 20, 2005
Notice is hereby given that the Annual Meeting of Stockholders of Eye
Dynamics, Inc., a Nevada corporation (the "Company"), will be held at the
Courtyard by Marriott, 2633 West Sepulveda Blvd., Torrance, California, on
September 20, 2005, at 10:00 a.m. local time for the following purposes:
1. To consider and vote upon the election of two directors;
2. To consider and vote on an amendment to the Company's Articles of
Incorporation increasing the authorized capitalization of the Company to 100
million shares;
3. To consider and vote on an amendment to the Company's Articles of
Incorporation conditionally changing the Company's name to AcuNetx, Inc.;
4. To consider and vote on adoption of new Bylaws; and
5. To transact such other business as may properly come before the
Meeting or any adjournments thereof.
The close of business on August 29, 2005, has been fixed as the record
date for the determination of stockholders entitled to notice of, and to vote
at, the meeting. A complete list of those stockholders will be open to
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours at the Company's offices for a period of ten days prior
to the meeting.
All stockholders are cordially invited to attend the meeting. Whether
or not you expect to attend, you are respectfully requested by the Board of
Directors to sign, date and return the enclosed proxy promptly. Stockholders who
execute proxies retain the right to revoke them at any time prior to the voting
thereof. A return envelope, which requires no postage if mailed in the United
States, is enclosed for your convenience.
By the order of the Board of Directors,
Ronald A. Waldorf, Chairman
Torrance, California
August 31, 2005
2
EYE DYNAMICS, INC.
2301 205th St., Suite 106
Torrance, CA 90501
PROXY STATEMENT
ANNUAL MEETING OF STOCKHOLDERS
This Proxy Statement is furnished in connection with the solicitation
of proxies by the Board of Directors (the "Board") of Eye Dynamics, Inc., a
Nevada corporation (the "Company"), for the Annual Meeting of Stockholders to be
held at the Courtyard by Marriott, 2633 West Sepulveda Blvd., Torrance,
California on September 20, 2005, at 10:00 a.m. local time, and for any
adjournment or adjournments thereof, for the purposes set forth in the
accompanying Notice of Annual Meeting of Stockholders. Any stockholder giving
such a proxy has the power to revoke it at any time before it is voted. Written
notice of such revocation should be forwarded directly to the Secretary of the
Company, at the above stated address. Attendance at the meeting will not have
the effect of revoking the proxy unless such written notice is given.
If the enclosed proxy is properly executed and returned, the shares
represented thereby will be voted in accordance with the directions thereon and
otherwise in accordance with the judgment of the persons designated as proxies.
Any proxy on which no direction is specified will be voted in favor of the
actions described in this Proxy Statement.
The approximate date on which this Proxy Statement and the accompanying
form of proxy will first be mailed or given to holders of the Company's Common
Stock is August 31, 2005.
The cost of solicitation of proxies will be borne by the Company. In
addition to the use of mail, employees of the Company may solicit proxies by
telephone or by other electronic means. Upon request, the Company will reimburse
brokers, dealers, bankers and trustees, or their nominees, for reasonable
expenses incurred by them in forwarding proxy materials to the beneficial
owners.
Your vote is important. Accordingly, you are urged to sign and return
the accompanying proxy card whether or not you plan to attend the Meeting.
VOTING
Only holders of shares of Common Stock of record as at the close of
business on the Record Date are entitled to vote at the Meeting. The Record Date
for the Meeting is August 29, 2005. On the Record Date there were issued and
outstanding 21,674,880 shares of Common Stock. Each outstanding share of Common
Stock is entitled to one vote upon all matters to be acted upon at the Meeting.
The presence in person or by proxy of the holders of a majority of the Common
Stock outstanding on the Record Date will constitute a quorum for the purposes
of the Meeting. The stockholders vote at the meeting by casting ballots (in
person or by proxy), which will be tabulated by a person appointed by the Board
before the Meeting to serve as the inspector of election at the meeting.
Abstentions and broker non-votes are included in the determination of the number
of shares of Common Stock present at the meeting for quorum purposes.
Abstentions are counted in the tabulation of the votes cast on proposals
presented to stockholders, whereas broker non-votes are not counted in the
tabulation of votes cast on such proposals.
REQUIRED VOTES
The affirmative vote of a plurality of the shares of Common Stock
present in person or by proxy at the meeting is necessary to elect the nominees
as directors. Stockholders may vote "FOR" any or all nominees or may "Withhold
Authority" to vote for the nominees. The affirmative vote of a plurality of the
shares of Common Stock present in person or by proxy at the meeting is necessary
to approve the adoption of new Bylaws.
3
The affirmative vote of a majority of the shares of Common Stock
outstanding on the Record Date is necessary to approve the conditional change of
name and the increase in authorized shares. Stockholders may vote "FOR",
"AGAINST" or "ABSTAIN" with respect to each of these proposals. Abstentions and
broker non-votes will have the same effect as a vote "AGAINST" each of these
proposals.
PROPOSAL 1--ELECTION OF DIRECTORS
INFORMATION CONCERNING NOMINEES
At the Meeting, two directors will be elected by the stockholders to
serve until the next Annual Meeting of Stockholders or until their successors
are elected and shall qualify. Each of the nominees is currently a director of
the Company. Management recommends that the persons named below be elected as
directors of the Company and it is intended that the accompanying proxy will be
voted for their election as directors, unless the proxy contains contrary
instructions. The Company has no reason to believe that any of the nominees will
not be a candidate or will be unable to serve. However, in the event that any of
the nominees should become unable or unwilling to serve as a director, the
persons named in the proxy have advised that they will vote for the election of
such person or persons as shall be designated by management.
The following sets forth the names of the nominees and certain
information with regard to each nominee:
Director
Name Age Position Since
---- --- -------- -----
Ronald A. Waldorf 57 Chief Executive Officer,
Secretary & Director 1991
Charles E. Phillips 70 President, Treasurer & Director 1991
Directors serve for a term of one year or until the next annual meeting
of stockholders.
RONALD A. WALDORF has been Chairman of the Board of Directors of the
Company since 1991 and is active in overall policy formation and strategic
planning for the Company. He was appointed as Chief Executive Officer in January
2005. He is the inventor of the IR/Video ENG System, SafetyScope and EM/1
products. He also owns a patent covering closely related technology that has
been licensed exclusively to the Company. Since 1969 Waldorf has been active in
the field of otolaryngology, primarily in an academic research environment at
the University of Florida, College of Medicine and at the University of
California (Irvine), Department of Surgery. He has published numerous articles
on vestibular and optokinetic research in international scientific and medical
journals and was the principal investigator in a research grant funded by the
National Institute of Health/National Institute on Alcohol Abuse and
Alcoholism(NIH/NIAAA). Since 1981 he has acted as a consultant to clinics and
hospitals in the Los Angeles area, including the House Ear Clinic. He has also
consulted to a Japanese company developing new technologies for eye movement
detection.
Mr. Waldorf earned an M.S. from the Department of Physiology of the
College of Medicine, University of Florida, in 1972.
CHARLES E. PHILLIPS has been President and a Director of the Company
and its predecessor, OculoKinetics, Inc. since its inception in 1988. Prior to
forming OculoKinetics, Inc., Mr. Phillips operated Charles E. Phillips, Inc., a
management and marketing consulting firm. His work has included assignments in
marketing, operations and the initiation of start-up ventures. From 1974 to
1985, Mr. Phillips was Executive Vice President and Director of Akai America,
Ltd., a consumer electronics company. His management background has encompassed
marketing, new product planning, sales, advertising, finance, accounting,
manufacturing, quality assurance and distribution.
Mr. Phillips received a B.A. from Pepperdine College, Los Angeles,
California with emphasis on Business and Speech Education, in 1956.
4
The members of the Board of Directors do not receive monetary
compensation for their service as directors, but are entitled to receive options
to purchase 20,000 shares of common stock for each year of service. As no
options had been issued under this policy since its inception in 1999, in
January 2005 the Company issued the options to each director for his period of
service. Thus, options to purchase up to 360,000 shares were issued, at an
exercise price of $.15 per share. Directors are also eligible for reimbursement
of their expenses incurred in connection with attendance at Board meetings in
accordance with Company policy.
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires the Company's officers and
directors, and persons who own more than 10% of a registered class of the
Company's equity securities (the "10% Stockholders"), to file reports of
ownership and changes of ownership with the Securities and Exchange Commission.
Officers, directors and 10% Stockholders of the Company are required by
Commission regulation to furnish the Company with copies of all Section 16(a)
forms so filed.
Based upon a review of filings made and other information available to
it, the Company believes that each of the Company's present Section 16 reporting
persons filed all forms required of them by Section 16(a) during the year 2002.
EXECUTIVE COMPENSATION
SUMMARY COMPENSATION TABLE
The following table sets forth certain compensation awarded or paid by
the Company to its executive officers and others during the fiscal years ended
December 31, 2004, 2003 and 2002.
SUMMARY COMPENSATION TABLE
LONG-TERM COMPENSATION
-----------------------------------------------------
ANNUAL COMPENSATION AWARDS PAYOUTS
------------------------------------ ------------------------------------
RESTRICTED LTIP
NAME AND SALARY BONUS OTHER STOCK AWARDS OPTIONS PAYOUTS ALL OTHER
PRINCIPAL POSITION YEAR $ $ $ $ # $ COMPENSATION
- ------------------ ---- ------ ----- ----- ------ ------- ------- ------------
Charles E. Phillips 2004 120,000 0 0 0 0 0 0
2003 97,500 0 0 0 0 0 0
2002 76,000 0 0 0 0 0 0
Ronald A. Waldorf 2004 0 0 0 0 0 0 0
2003 0 0 0 0 0 0 0
2002 0 0 0 0 0 0 0
Barbara J. Mauch 2004 76,000 0 0 0 0 0 0
2003 67,500 0 0 0 0 0 0
2002 56,000 0 0 0 0 0 0
5
There were no options granted or exercised in 2004.
The following table sets forth certain information concerning options
outstanding at December 31, 2004:
Number of Value of Unexercised
Shares Unexercised In-the-money
Acquired on Value Options at Options at
Exercise Realized December 31, 2003* December 31, 2003*
---------- -------- ------------------ ------------------
Name
----
Charles E. Phillips 0 0 0 0
Ronald Waldorf 0 0 0 0
Arnold Kay 0 0 0 0
Barbara J. Mauch 0 0 0 0
The Company has employment agreements with its President and an
employee that provide for aggregate annual compensation of $150,000. The
agreements are automatically renewed year to year. The agreements may be
terminated by the Company or the officers with notice 60 days prior to any
expiration date.
Each director holds office until the Company's next meeting of its
stockholders and until such director's successor is duly elected and qualified
or until such director's earlier resignation or removal.
GENERAL INFORMATION CONCERNING THE BOARD
The Board met two times in the fiscal year ended December 31,
2004. It is the Company's policy that directors who are nominees for election at
the Annual Meeting attend the Annual Meeting. During the last fiscal year each
of the directors then serving attended at least 75% of the of meetings of the
Board. The Company has no standing committees. The Company believes that because
of the small size of its Board of Directors, it is appropriate for it not to
have committees.
DIRECTOR NOMINATION PROCESS. The Board determines those individuals it
believes should be nominated for election or reelection as members of the Board.
The Company's directors play an important role in guiding the Company's
strategic direction and overseeing the management of the Company. Board
candidates are considered based upon various criteria, such as their business
and professional skills and experiences, including particular experience in
areas relevant to the Company's business activities, concern for the long-term
interests of the stockholders, and personal integrity and judgment. In addition,
directors must have time available to devote to Board activities. Accordingly,
we seek to attract and retain highly qualified directors who have sufficient
time to attend to their duties and responsibilities to the Company. In
determining individuals to recommend for nomination, the Board will consider
candidates recommended by stockholders, in addition to Board-identified
candidates. Stockholders wishing to recommend nominees for election at the 2006
Annual Meeting should provide all relevant background material for the
candidate, including curriculum vitae, to the Chairman of the Board, at the
address of the Company, in advance of the date set forth herein for receipt of
stockholder proposals for the 2006 Annual Meeting.
6
PRINCIPAL STOCKHOLDERS
The following table sets forth information regarding the beneficial
ownership of the Common Stock of the Company as of July 31, 2005, by (i) each
person known by the Company to beneficially own 5% or more of the outstanding
Common Stock of the Company; (ii) each of the Company's directors; (iii) the
executive officers; and (iv) all directors and executive officers of the Company
as a group.
Name & Address Number of Shares Percentage Owned
-------------- ---------------- ----------------
Charles E. Phillips*
2301 W. 205th St., #102 2,225,489 (1) 10.3%
Torrance, CA 90501
Donald E. Hall 2,394,533 11.1%
350 S. Grand Ave., Suite 3570
Los Angeles, CA 90071
Ronald A. Waldorf*
2301 W. 205th St., #102 1,067,100 (1) 4.9%
Torrance, CA 90501
Barbara J. Mauch 1,382,544 6.4%
2301 W. 205th St., #102
Torrance, CA 90501
Arnold D. Kay* 433,031 (1) 2.0%
2301 W. 205th St., #102
Torrance, CA 90501
All directors and executive
officers as a group 3,725,620 (1) 17.1%
(4 persons)
--------------------------------------------------------------------------------
Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission and generally includes voting or investment
power with respect to securities. Except as indicated by footnote, and subject
to community property laws where applicable, the persons named in the table
above have sole voting and investment power with respect to all shares of Common
Stock shown as beneficially owned by them. Shares of Common Stock subject to
securities currently convertible, or convertible within 60 days after July 31,
2005, are deemed to be outstanding in calculating the percentage ownership of a
person or group but are not deemed to be outstanding as to any other person or
group.
* Denotes Member of the Board of Directors.
(1) Includes shares issuable upon exercise of currently exercisable options.
AUDIT AND OTHER FEES
Summarized below is the aggregate amount of professional fees billed by
our principal accountants, Spector & Wong, LLP with respect to the last two
fiscal years:
2004 2003
---- ----
Audit fees $7,000 $6,600
Audit - related fees 5,000 7,200
Tax fees 1,350 1,200
All other fees, -0- -0-
------- -------
Total: $13,350 $15,000
======= =======
All audit fees were approved by our board of directors. Spector & Wong
LLP did not provide any non-audit services other than tax services to the
Company. Audit fees include fees for the annual audit and review of financial
statements included in that year's Form 10-QSB filings, as well as fees for any
other services normally provided by the principal accountant in connection with
statutory or regulatory filings, including SEC filings, or engagements.
PROPOSAL 2- INCREASE IN AUTHORIZED SHARES
Our Board of Directors approved, subject to stockholder approval, an
amendment to the Company's Articles of Incorporation to increase the number of
shares of Common Stock which the Company is authorized to issue from fifty
million (50,000,000) shares to one hundred million (100,000,000) shares. At
present, the Articles of Incorporation provides that the total number of shares
the Company has authority to issue is fifty million (50,000,000) shares of
Common Stock.
The change will be accomplished by amending ARTICLE IV of the Company's
Certificate of Incorporation to read as follows:
The total number of shares of Common Stock this Corporation is
authorized to issue is one Hundred Million (100,000,000), with a par
value of $.001 per share.
7
The Amendment will become effective upon filing the Certificate of
Amendment to the Company's Articles of Incorporation with the Nevada Secretary
of State, anticipated to be shortly after approval by the stockholders.
The Board of Directors of the Company believes that the amendment is
advisable and in the best interests of the Company and its stockholders. The
Company has entered into an Agreement and Plan of Merger with OrthoNetx, Inc.
("OrthoNetx"), which, if consummated along with certain financing transactions
described therein, will require the issuance of approximately 22,000,000 shares
of Common Stock. In addition, the Board of Directors believes that the increase
in authorized shares will allow it flexibility for possible future financings
and acquisitions.
PROPOSAL 3-NAME CHANGE
The Agreement and Plan of Merger with OrthoNetx contemplates that
following completion of the merger the Company's name is to be changed to
"AcuNetx, Inc." The Board of Directors has determined that it is advisable and
recommends that the stockholders approve an amendment to the Company's
Certificate of Incorporation to change the name of the Company to "AcuNetx,
Inc.," conditional upon completion of the merger.
The Board of Directors believes the proposed new name will more
accurately reflect the Company's expanded business focus following the merger.
The change of the Company's name will not affect, in any way, the
validity of currently outstanding stock certificates, nor will it be necessary
for the Company's stockholders to surrender or exchange any stock certificates
that they currently hold as a result of the name change. If the name change is
approved at the meeting, and the merger with OrthoNetx is completed, the Company
intends to promptly file an amendment to its Articles of Incorporation effecting
the name change. In connection with the name change, the Company may seek to
change the trading symbol for its common stock on the NASD Over-The-Counter
Bulletin Board.
Stockholders will not be entitled to rights of appraisal or similar
rights of dissenters in connection with the proposed name change.
The Board of Directors recommends a vote for approval of the name
change.
PROPOSAL 4 - APPROVAL OF NEW BYLAWS
The Board of Directors has unanimously approved, subject to stockholder
approval, new Bylaws, which are set forth in full in Appendix A to this Proxy
Statement. The Board of Directors decided to take such action to (a) increase
the size of the Board of Directors from three persons to a range of two to
fifteen directors, with the exact amount to be determined by the Board of
Directors from time to time, and (b) generally update the Company's Bylaws to be
consistent with the current Nevada General Corporation Law. The Agreement and
Plan of Merger with OrthoNetx, Inc. contemplates that, immediately following the
merger, there will be seven directors.
The new Bylaws do not classify the Board of Directors and do not add
new provisions to the Company's existing Bylaws generally recognized as
"anti-takeover" provisions. The new Bylaws generally track the provision of the
Nevada General Corporation Act and provide the Board of Directors with maximum
corporate management operating flexibility as permitted by Nevada law.
If the new Bylaws are adopted, such Bylaws shall become effective
immediately. If the proposal is not approved by the stockholders, the current
Bylaws of the Company will remain in effect.
The Board of Directors recommends a vote FOR the adoption of the new
Bylaws.
The Board is not aware of any matters not set forth herein that may
come before the meeting. If, however, further business properly comes before the
meeting, the persons named in the proxies will vote the shares represented
thereby in accordance with their judgment.
8
STOCKHOLDER PROPOSALS AND COMMUNICATIONS
PROPOSALS FOR THE 2006 ANNUAL MEETING
Stockholders may submit proposals on matters appropriate for
stockholder action at annual meetings in accordance with regulations adopted by
the Commission. To be considered for inclusion in the proxy statement and form
of proxy relating to the 2006 Annual Meeting of Stockholders, such proposals
must be received by the Company not later than March 4, 2006. Proposals should
be directed to the attention of the Secretary of the Company.
COMMUNICATIONS WITH THE BOARD OF DIRECTORS
The Board of Directors provides a process for stockholders to send
communications to the Board or any of the directors. Stockholders may send
written communications to the Board or any of the directors c/o Secretary, Eye
Dynamics, Inc., 2301 205th St., Suite 106, Torrance, CA 90501. All
communications will be collected and submitted to the Board or the individual
directors on a periodic basis.
ANNUAL REPORT
The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2004 accompanies this Proxy Statement. The Annual Report on Form
10-KSB does not constitute a part of the proxy soliciting material.
By order of the Board of Directors,
Ronald Waldorf, Chairman
Dated: August 31, 2005
9
EYE DYNAMICS, INC.
2301 205TH ST., SUITE 106, TORRANCE, CA 90501
PROXY FOR ANNUAL MEETING OF STOCKHOLDERS
to be held on September 20, 2005
This Proxy is solicited on Behalf of the Board of Directors.
The undersigned hereby appoints Ronald Waldorf and Charles E. Phillips, and each
of them (with full power to act without the other), as proxies with full power
of substitution, to represent the undersigned at the Annual Meeting of
Stockholders to be held at the Courtyard by Marriott, 2633 West Sepulveda Blvd.,
Torrance, California on September 20, 2005 at 10:00 a.m. and at any adjournment
thereof, and to vote the shares of Common Stock the undersigned would be
entitled to vote if personally present, as indicated on the reverse side:
(CONTINUED, AND TO BE SIGNED ON REVERSE SIDE)
PLEASE DATE, SIGN AND MAIL YOUR
PROXY CARD BACK AS SOON AS POSSIBLE!
ANNUAL MEETING OF STOCKHOLDERS
EYE DYNAMICS, INC.
September 20, 2005
Election of
Directors.
FOR all nominees WITHHOLD AUTHORITY NOMINEES: Ronald A. Waldorf
Listed at right (except to vote for all nominees Charles E. Phillips
as marked to the listed at right
contrary below)
/ / / /
(INSTRUCTION: To withhold authority to vote for any individual nominee, print
that nominee's name on the line provided below.)
--------------------------------------------------------------------------------
FOR AGAINST ABSTAIN
2. To approve an amendment to the Company's Restated / / / / / /
Certificate of Incorporation conditionally changing
the Company's name to AcuNetx, Inc.
3. To approve an amendment to the Company's Articles of
Incorporation increasing the authorized number of
shares to 100,000,000 / / / / / /
4. To approve new Bylaws / / / / / /
5. In their discretion, the proxies are authorized to vote upon such business as
may properly come before the Meeting.
The Shares represented by this proxy will be voted as directed. If no contrary
instruction is given, the shares will be voted FOR the election of the nominees
and FOR Proposals 2, 3 and 4. On any other matters that may come before the
Meeting the proxy will be voted in the discretion of the above-named persons.
SIGNATURE(S) ____________________ ________________________ DATED________, 2005
Note: (Please date, sign as name appears above and return promptly. If the
Shares are registered in the names of two or more persons, each should sign.
When signing as Corporate Officer, Partner, Executor, Administrator, Trustee or
Guardian, please give full title. Please note any changes in your address
alongside the address as it appears in the proxy.)
APPENDIX A
BYLAWS
OF
EYE DYNAMICS, INC.
A NEVADA CORPORATION
TABLE OF CONTENTS
Page
ARTICLE I......................................................................1
Offices.....................................................................1
ARTICLE II.....................................................................1
Shareholders................................................................1
Section 1. Annual Meeting...............................................1
Section 2. Special Meetings.............................................1
Section 3. Place of Meeting.............................................2
Section 4. Notice of Meeting............................................2
Section 5. Fixing of Record Date........................................3
Section 6. Voting Lists.................................................3
Section 7. Recognition Procedure for Beneficial Owners..................4
Section 8. Quorum and Manner of Acting..................................4
Section 9. Proxies......................................................5
Section 10. Voting of Shares............................................6
Section 11. Corporation's Acceptance of Votes...........................6
Section 12. Informal Action by Shareholders.............................7
Section 13. Meetings by Telecommunication...............................8
ARTICLE III....................................................................8
Board of Directors..........................................................8
Section 1. General Powers...............................................8
Section 2. Number, Qualifications and Tenure............................8
Section 3. Vacancies....................................................8
Section 4. Regular Meetings.............................................9
Section 5. Special Meetings.............................................9
Section 6. Notice.......................................................9
Section 7. Quorum......................................................10
Section 8. Manner of Acting............................................10
Section 9. Compensation................................................10
Section 10. Presumption of Assent......................................10
Section 11. Committees.................................................10
Section 12. Informal Action by Directors...............................11
Section 13. Telephonic Meetings........................................11
Section 14. Standard of Care...........................................11
ARTICLE IV....................................................................12
Officers and Agents........................................................12
Section 1. General.....................................................12
Section 2. Appointment and Term of Office..............................12
Section 3. Resignation and Removal.....................................12
Section 4. Vacancies...................................................12
Section 5. President...................................................13
Section 6. Vice Presidents.............................................13
Section 7. Secretary...................................................13
Section 8. Treasurer...................................................14
ARTICLE V.....................................................................15
Stock......................................................................15
Section 1. Certificates................................................15
Section 2. Consideration for Shares....................................15
Section 3. Lost Certificates...........................................16
Section 4. Transfer of Shares..........................................16
Section 5. Transfer Agent, Registrars and Paying Agents................16
ARTICLE VI....................................................................16
Indemnification of Certain Persons.........................................16
Section 1. Indemnification.............................................16
Section 2. Right to Indemnification....................................17
Section 3. Effect of Termination of Action.............................17
Section 4. Groups Authorized to Make Indemnification Determination.....17
Section 5. Court-Ordered Indemnification...............................18
Section 6. Advance of Expenses.........................................18
Section 7. Additional Indemnification to Certain Persons Other
Than Directors..............................................19
Section 8. Witness Expenses............................................19
Section 9. Report to Shareholders......................................19
ARTICLE VII...................................................................19
Provisions of Insurance....................................................19
Section 1. Provision of Insurance......................................19
ARTICLE VIII..................................................................20
Miscellaneous..............................................................20
Section 1. Seal........................................................20
Section 2. Fiscal Year.................................................20
Section 3. Amendments..................................................20
Section 4. Receipt of Notices by the Corporation.......................20
Section 5. Gender......................................................20
Section 6. Conflicts...................................................20
Section 7. Definitions.................................................20
BYLAWS
OF
EYE DYNAMICS, INC.
ARTICLE I
OFFICES
The principal office of the corporation shall be designated from time
to time by the corporation and may be within or outside of Nevada.
The corporation may have such other offices, either within or outside
Nevada, as the board of directors may designate or as the business of the
corporation may require from time to time.
The registered office of the corporation required by the Nevada General
Corporation Law to be maintained in Nevada may be, but need not be, identical
with the principal office, and the address of the registered office may be
changed from time to time by the board of directors.
ARTICLE II
SHAREHOLDERS
Section 1. ANNUAL MEETING. The annual meeting of the shareholders shall
be held each year on a date and at a time fixed by the board of directors of the
corporation (or by the president in the absence of action by the board of
directors) for the purpose of electing directors and for the transaction of such
other business as may come before the meeting. If the election of directors is
not held on the day fixed as provided herein for any annual meeting of the
shareholders, or any adjournment thereof, the board of directors shall cause the
election to be held at a special meeting of the shareholders as soon thereafter
as it may conveniently be held.
A shareholder may apply to the district court in the county in Nevada
where the corporation's principal office is located or, if the corporation has
no principal office in Nevada, to the district court of the county in which the
corporation's registered office is located to seek an order that a shareholder
meeting be held (i) if an annual meeting was not held within six months after
the close of the corporation's most recently ended fiscal year or fifteen months
after its last annual meeting, whichever is earlier, or (ii) if the shareholder
participated in a proper call of or proper demand for a special meeting and
notice of the special meeting was not given within thirty days after the date of
the call or the date the last of the demands necessary to require calling of the
meeting was received by the corporation pursuant to Nevada corporate law, or the
special meeting was not held in accordance with the notice.
Section 2. SPECIAL MEETINGS. Unless otherwise prescribed by statute,
special meetings of the shareholders may be called for any purpose by the
president or by the board of directors. The president shall call a special
meeting of the shareholders if the corporation receives one or more written
demands for the meeting, stating the purpose or purposes for which it is to be
held, signed and dated by holders of shares representing at least ten percent of
all the votes entitled to be cast on any issue proposed to be considered at the
meeting.
Section 3. PLACE OF MEETING. The board of directors may designate any
place, either within or outside Nevada, as the place for any annual meeting or
any special meeting called by the board of directors. A waiver of notice signed
by all shareholders entitled to vote at a meeting may designate any place,
either within or outside Nevada, as the place for such meeting. If no
designation is made, or if a special meeting is called other than by the board,
the place of meeting shall be the principal office of the corporation.
Section 4. NOTICE OF MEETING. Written notice stating the place, date,
and hour of the meeting shall be given not less than ten nor more than sixty
days before the date of the meeting, except that (i) if the number of authorized
shares is to be increased, at least thirty days' notice shall be given, or (ii)
any other longer notice period is required by the Nevada General Corporation
Law. The secretary shall be required to give such notice only to shareholders
entitled to vote at the meeting except as otherwise required by the Nevada
General Corporation Law.
Notice of a special meeting shall include a description of the purpose
or purposes of the meeting. Notice of an annual meeting need not include a
description of the purpose or purposes of the meeting except the purpose or
purposes shall be stated with respect to (i) an amendment to the articles of
incorporation of the corporation, (ii) a merger or share exchange in which the
corporation is a party and, with respect to a share exchange, in which the
corporation's shares will be acquired, (iii) a sale, lease, exchange or other
disposition, other than in the usual and regular course of business, of all or
substantially all of the property of the corporation or of another entity which
this corporation controls, in each case with or without the goodwill, (iv) a
dissolution of the corporation, (v) restatement of the articles of
incorporation, or (vi) any other purpose for which a statement of purpose is
required by the Nevada General Corporation Law. Notice shall be given personally
or by mail, private carrier, telegraph, electronically transmitted facsimile or
other form of wire or wireless communication by or at the direction of the
president, the secretary, or the officer or persons calling the meeting, to each
shareholder of record entitled to vote at such meeting. If mailed and if in a
comprehensible form, such notice shall be deemed to be given and effective when
deposited in the United States mail, properly addressed to the shareholder at
his address as it appears in the corporation's current record of shareholders,
with first class postage prepaid. If notice is given other than by mail, and
provided that such notice is in a comprehensible form, the notice is given and
effective on the date actually received by the shareholder.
If requested by the person or persons lawfully calling such meeting,
the secretary shall give notice thereof at corporate expense. No notice need be
sent to any shareholder if three successive notices mailed to the last known
address of such shareholder have been returned as undeliverable until such time
as another address for such shareholder is made known to the corporation by such
shareholder. In order to be entitled to receive notice of any meeting, a
shareholder shall advise the corporation in writing of any change in such
shareholder's mailing address as shown on the corporation's books and records.
2
When a meeting is adjourned to another date, time or place, notice need
not be given of the new date, time or place if the new date, time or place of
such meeting is announced before adjournment at the meeting at which the
adjournment is taken. At the adjourned meeting the corporation may transact any
business which may have been transacted at the original meeting. If the
adjournment is for more than 120 days, or if a new record date is fixed for the
adjourned meeting, a new notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting as of the new record date.
A shareholder may waive notice of a meeting before or after the time
and date of the meeting by a writing signed by such shareholder. Such waiver
shall be delivered to the corporation for filing with the corporate records, but
this delivery and filing shall not be conditions to the effectiveness of the
waiver. Further, by attending a meeting either in person or by proxy, a
shareholder waives objection to lack of notice or defective notice of the
meeting unless the shareholder objects at the beginning of the meeting to the
holding of the meeting or the transaction of business at the meeting because of
lack of notice or defective notice. By attending the meeting, the shareholder
also waives any objection to consideration at the meeting of a particular matter
not within the purpose or purposes described in the meeting notice unless the
shareholder objects to considering the matter when it is presented.
Section 5. FIXING OF RECORD DATE. For the purpose of determining
shareholders entitled to (i) notice of or vote at any meeting of shareholders or
any adjournment thereof, (ii) receive distributions or share dividends, (iii)
demand a special meeting, or (iv) make a determination of shareholders for any
other proper purpose, the board of directors may fix a future date as the record
date for any such determination of shareholders, such date in any case to be not
more than seventy days, and, in case of a meeting of shareholders, not less than
ten days, prior to the date on which the particular action requiring such
determination of shareholders is to be taken. If no record date is fixed by the
directors, the record date shall be the day before the notice of the meeting is
given to shareholders, or the date on which the resolution of the board of
directors providing for a distribution is adopted, as the case may be. When a
determination of shareholders entitled to vote at any meeting of shareholders is
made as provided in this section, such determination shall apply to any
adjournment thereof unless the board of directors fixes a new record date, which
it must do if the meeting is adjourned to a date more than 120 days after the
date fixed for the original meeting. Unless otherwise specified when the record
date is fixed, the time of day for such determination shall be as of the
corporation's close of business on the record date.
Notwithstanding the above, the record date for determining the
shareholders entitled to take action without a meeting or entitled to be given
notice of action so taken shall be the date a writing upon which the action is
taken is first received by the corporation. The record date for determining
shareholders entitled to demand a special meeting shall be the date of the
earliest of any of the demands pursuant to which the meeting is called.
Section 6. VOTING LISTS. After a record date is fixed for a
shareholders' meeting, the secretary shall make, at the earlier of ten days
before such meeting or two business days after notice of the meeting has been
given, a complete list of the shareholders entitled to be given notice of such
meeting or any adjournment thereof. The list shall be arranged by voting groups
and within each voting group by class or series of shares, shall be in
3
alphabetical order within each class or series, and shall show the address of
and the number of shares of each class or series held by each shareholder. For
the period beginning the earlier of ten days prior to the meeting or two
business days after notice of the meeting is given and continuing through the
meeting and any adjournment thereof, this list shall be kept on file at the
principal office of the corporation, or at a place (which shall be identified in
the notice) in the city where the meeting will be held. Such list shall be
available for inspection on written demand by any shareholder (including for the
purpose of this Section 6 any holder of voting trust certificates) or his agent
or attorney during regular business hours and during the period available for
inspection. The original stock transfer books shall be prima facie evidence as
to who are the shareholders entitled to examine such list or transfer books or
to vote at any meeting of shareholders.
Any shareholder, his agent or attorney may copy the list during regular
business hours and during the period it is available for inspection, provided
(i) the shareholder has been a shareholder for at least three months immediately
preceding the demand or holds at least five percent of all outstanding shares of
any class of shares as of the date of the demand, (ii) the demand is made in
good faith and for a purpose reasonably related to the demanding shareholder's
interest as a shareholder, (iii) the shareholder describes with reasonable
particularity the purpose and the records the shareholder desires to inspect,
(iv) the records are directly connected with the described purpose, and (v) the
shareholder pays a reasonable charge covering the costs of labor and material
for such copies, not to exceed the estimated cost of production and
reproduction.
Section 7. RECOGNITION PROCEDURE FOR BENEFICIAL OWNERS. The board of
directors may adopt by resolution a procedure whereby a shareholder of the
corporation may certify in writing to the corporation that all or a portion of
the shares registered in the name of such shareholder are held for the account
of a specified person or persons. The resolution may set forth (i) the types of
nominees to which it applies, (ii) the rights or privileges that the corporation
will recognize in a beneficial owner, which may include rights and privileges
other than voting, (iii) the form of certification and the information to be
contained therein, (iv) if the certification is with respect to a record date,
the time within which the certification must be received by the corporation, (v)
the period for which the nominee's use of the procedure is effective, and (vi)
such other provisions with respect to the procedure as the board deems necessary
or desirable. Upon receipt by the corporation of a certificate complying with
the procedure established by the board of directors, the persons specified in
the certification shall be deemed, for the purpose or purposes set forth in the
certification, to be the registered holders of the number of shares specified in
place of the shareholder making the certification.
Section 8. QUORUM AND MANNER OF ACTING. A majority of the votes
entitled to be cast on a matter by a voting group represented in person or by
proxy, shall constitute a quorum of that voting group for action on the matter.
If less than a majority of such votes are represented at a meeting, a majority
of the votes so represented may adjourn the meeting from time to time without
further notice, for a period not to exceed 120 days for any one adjournment. If
a quorum is present at such adjourned meeting, any business may be transacted
4
which might have been transacted at the meeting as originally noticed. The
shareholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, unless the meeting is adjourned and a
new record date is set for the adjourned meeting.
If a quorum exists, action on a matter other than the election of
directors by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast within the voting group opposing
the action, unless the vote of a greater number or voting by classes is required
by law or the articles of incorporation.
Section 9. PROXIES. At all meetings of shareholders, a shareholder may
vote by proxy by signing an appointment form or similar writing, either
personally or by his duly authorized attorney-in-fact. A shareholder may also
appoint a proxy by transmitting or authorizing the transmission of a telegram,
or other electronic transmission providing a written statement of the
appointment to the proxy, a proxy solicitor, proxy support service organization,
or other person duly authorized by the proxy to receive appointments as agent
for the proxy, or to the corporation. The transmitted appointment shall set
forth or be transmitted with written evidence from which it can be determined
that the shareholder transmitted or authorized the transmission of the
appointment. The proxy appointment form or similar writing shall be filed with
the secretary of the corporation before or at the time of the meeting. The
appointment of a proxy is effective when received by the corporation and is
valid for eleven months unless a different period is expressly provided in the
appointment form or similar writing.
Any complete copy, including an electronically transmitted facsimile,
of an appointment of a proxy may be substituted for or used in lieu of the
original appointment for any purpose for which the original appointment could be
used.
Revocation of a proxy does not affect the right of the corporation to
accept the proxy's authority unless (i) the corporation had notice that the
appointment was coupled with an interest and notice that such interest is
extinguished is received by the secretary or other officer or agent authorized
to tabulate votes before the proxy exercises his authority under the
appointment, or (ii) other notice of the revocation of the appointment is
received by the secretary or other officer or agent authorized to tabulate votes
before the proxy exercises his authority under the appointment. Other notice of
revocation may, in the discretion of the corporation, be deemed to include the
appearance at a shareholders' meeting of the shareholder who granted the proxy
and his voting in person on any matter subject to a vote at such meeting.
The death or incapacity of the shareholder appointing a proxy does not
affect the right of the corporation to accept the proxy's authority unless
notice of the death or incapacity is received by the secretary or other officer
or agent authorized to tabulate votes before the proxy exercises his authority
under the appointment.
The corporation shall not be required to recognize an appointment made
irrevocable if it has received a writing revoking the appointment signed by the
shareholder (including a shareholder who is a successor to the shareholder who
granted the proxy) either personally or by his attorney-in-fact, notwithstanding
that the revocation may be a breach of an obligation of the shareholder to
another person not to revoke the appointment.
5
Subject to Section 11 and any express limitation on the proxy's
authority appearing on the appointment form, the corporation is entitled to
accept the proxy's vote or other action as that of the shareholder making the
appointment.
Section 10. VOTING OF SHARES. Each outstanding share, regardless of
class, shall be entitled to one vote, except in the election of directors, and
each fractional share shall be entitled to a corresponding fractional vote on
each matter submitted to a vote at a meeting of shareholders, except to the
extent that the voting rights of the shares of any class or classes are limited
or denied by the articles of incorporation as permitted by the Nevada Business
Corporation Code. Cumulative voting shall not be permitted in the election of
directors or for any other purpose. Each record holder of stock shall be
entitled to vote in the election of directors and shall have as many votes for
each of the shares owned by him as there are directors to be elected and for
whose election he has the right to vote.
At each election of directors, that number of candidates equaling the
number of directors to be elected, having the highest number of votes cast in
favor of their election, shall be elected to the board of directors.
Except as otherwise ordered by a court of competent jurisdiction upon a
finding that the purpose of this Section would not be violated in the
circumstances presented to the court, the shares of the corporation are not
entitled to be voted if they are owned, directly or indirectly, by a second
corporation, domestic or foreign, and the first corporation owns, directly or
indirectly, a majority of the shares entitled to vote for directors of the
second corporation except to the extent the second corporation holds the shares
in a fiduciary capacity.
Redeemable shares are not entitled to be voted after notice of
redemption is mailed to the holders and a sum sufficient to redeem the shares
has been deposited with a bank, trust company or other financial institution
under an irrevocable obligation to pay the holders the redemption price on
surrender of the shares.
Section 11. CORPORATION'S ACCEPTANCE OF VOTES. If the name signed on a
vote, consent, waiver, proxy appointment, or proxy appointment revocation
corresponds to the name of a shareholder, the corporation, if acting in good
faith, is entitled to accept the vote, consent, waiver, proxy appointment or
proxy appointment revocation and give it effect as the act of the shareholder.
If the name signed on a vote, consent, waiver, proxy appointment or proxy
appointment revocation does not correspond to the name of a shareholder, the
corporation, if acting in good faith, is nevertheless entitled to accept the
vote, consent, waiver, proxy appointment or proxy appointment revocation and to
give it effect as the act of the shareholder if:
(i) the shareholder is an entity and the name signed
purports to be that of an officer or agent of the
entity;
(ii) the name signed purports to be that of an
administrator, executor, guardian or conservator
representing the shareholder and, if the corporation
requests, evidence of fiduciary status acceptable to
6
the corporation has been presented with respect to
the vote, consent, waiver, proxy appointment or proxy
appointment revocation;
(iii) the name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the
corporation requests, evidence of this status
acceptable to the corporation has been presented with
respect to the vote, consent, waiver, proxy
appointment or proxy appointment revocation;
(iv) the name signed purports to be that of a pledgee,
beneficial owner or attorney-in-fact of the
shareholder and, if the corporation requests,
evidence acceptable to the corporation of the
signatory's authority to sign for the shareholder has
been presented with respect to the vote, consent,
waiver, proxy appointment or proxy appointment
revocation;
(v) two or more persons are the shareholder as co-tenants
or fiduciaries and the name signed purports to be the
name of at least one of the co-tenants or
fiduciaries, and the person signing appears to be
acting on behalf of all the co-tenants or
fiduciaries; or
(vi) the acceptance of the vote, consent, waiver, proxy
appointment or proxy appointment revocation is
otherwise proper under rules established by the
corporation that are not inconsistent with this
Section 11.
The corporation is entitled to reject a vote, consent, waiver, proxy
appointment or proxy appointment revocation 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 shareholder.
Neither the corporation nor its officers nor any agent who accepts or
rejects a vote, consent, waiver, proxy appointment or proxy appointment
revocation in good faith and in accordance with the standards of this Section is
liable in damages for the consequences of the acceptance or rejection.
Section 12. ACTION BY SHAREHOLDERS BY WRITTEN CONSENT. Any action
required or permitted to be taken at a meeting of the shareholders may be taken
without a meeting if before or after the action, a written consent (or
counterparts thereof) that sets forth the action so taken is signed by
shareholders holding at least a majority of the voting power entitled to vote
with respect to the subject matter thereof except if a different proportion of
voting power is required for such an action at a meeting, then that proportion
of written consents is required. Such consent shall have the same force and
effect as a vote of the shareholders and may be stated as such in any document.
Action taken under this Section 12 is effective as of the date the last writing
necessary to effect the action is received by the corporation, unless all of the
writings specify a different effective date, in which case such specified date
shall be the effective date for such action. The record date for determining
shareholders entitled to take action without a meeting is the date the
corporation first receives a writing upon which the action is taken.
7
Any shareholder who has signed a writing describing and consenting to
action taken pursuant to this Section 12 may revoke such consent by a writing
signed by the shareholder describing the action and stating that the
shareholder's prior consent thereto is revoked, if such writing is received by
the corporation before the effectiveness of the action.
In no instance where action is authorized by written consent need a
meeting of shareholders be called or notice given.
Section 13. MEETINGS BY TELECOMMUNICATION. Any or all of the
shareholders may participate in an annual or special shareholders' meeting by,
or the meeting may be conducted through the use of, any means of communication
by which all persons participating in the meeting may hear each other during the
meeting. A shareholder participating in a meeting by this means is deemed to be
present in person at the meeting.
ARTICLE III
BOARD OF DIRECTORS
Section 1. GENERAL POWERS. All corporate powers shall be exercised by
or under the authority of, and the business and affairs of the corporation shall
be managed under the direction of, its board of directors, except as otherwise
provided in the Nevada General Corporation Law or the articles of incorporation.
Section 2. NUMBER, QUALIFICATIONS AND TENURE. The number of directors
of the corporation shall be fixed from time to time by the board of directors,
within a range of no less than two or more than fifteen, but no decrease in the
number of directors shall have the effect of shortening the term of any
incumbent director. A director shall be a natural person who is eighteen years
of age or older. A director need not be a resident of Nevada or a shareholder of
the corporation.
Directors shall be elected at each annual meeting of shareholders. Each
director shall hold office until the next annual meeting of shareholders
following his election and thereafter until his successor shall have been
elected and qualified. Directors shall be removed in the manner provided by the
Nevada General Corporation Law. Any director may be removed by the shareholders
of the voting group that elected the director, with or without cause, at a
meeting called for that purpose. The notice of the meeting shall state that the
purpose or one of the purposes of the meeting is removal of the director. A
director may be removed only if the number of votes cast in favor of removal
exceeds the number of votes cast against removal.
Section 3. VACANCIES. Any director may resign at any time by giving
written notice to the secretary. Such resignation shall take effect at the time
the notice is received by the secretary unless the notice specifies a later
effective date. Unless otherwise specified in the notice of resignation, the
corporation's acceptance of such resignation shall not be necessary to make it
effective. Any vacancy on the board of directors may be filled by the
affirmative vote of a majority of the shareholders at a special meeting called
for that purpose or by the board of directors. If the directors remaining in
office constitute fewer than a quorum of the board, the directors may fill the
vacancy by the affirmative vote of a majority of all the directors remaining in
8
office. If elected by the directors, the director shall hold office until the
next annual shareholders' meeting at which directors are elected. If elected by
the shareholders, the director shall hold office for the unexpired term of his
predecessor in office; except that, if the director's predecessor was elected by
the directors to fill a vacancy, the director elected by the shareholders shall
hold office for the unexpired term of the last predecessor elected by the
shareholders.
Section 4. REGULAR MEETINGS. A regular meeting of the board of
directors shall be held without notice immediately after and at the same place
as the annual meeting of shareholders. The board of directors may provide by
resolution the time and place, either within or outside Nevada, for the holding
of additional regular meetings without other notice.
Section 5. SPECIAL MEETINGS. Special meetings of the board of directors
may be called by or at the request of the president or any one (1) of the
directors. The person or persons authorized to call special meetings of the
board of directors may fix any place, either within or outside Nevada, as the
place for holding any special meeting of the board of directors called by them.
Section 6. NOTICE. Notice of the date, time and place of any special
meeting shall be given to each director at least two days prior to the meeting
by written notice either personally delivered or mailed to each director at his
business address, or by notice transmitted by private courier, telegraph,
electronically transmitted facsimile or other form of wire or wireless
communication. If mailed, such notice shall be deemed to be given and to be
effective on the earlier of (i) five days after such notice is deposited in the
United States mail, properly addressed, with first class postage prepaid, or
(ii) the date shown on the return receipt, if mailed by registered or certified
mail return receipt requested, provided that the return receipt is signed by the
director to whom the notice is addressed. If notice is given by telex,
electronically transmitted facsimile or other similar form of wire or wireless
communication, such notice shall be deemed to be given and to be effective when
sent, and with respect to a telegram, such notice shall be deemed to be given
and to be effective when the telegram is delivered to the telegraph company. If
a director has designated in writing one or more reasonable addresses or
facsimile numbers for delivery of notice to him, notice sent by mail, telegraph,
electronically transmitted facsimile or other form of wire or wireless
communication shall not be deemed to have been given or to be effective unless
sent to such addresses or facsimile numbers, as the case may be.
A director may waive notice of a meeting before or after the time and
date of the meeting by a writing signed by such director. Such waiver shall be
delivered to the secretary for filing with the corporate records, but such
delivery and filing shall not be conditions to the effectiveness of the waiver.
Further, a director's attendance at or participation in a meeting waives any
required notice to him of the meeting unless at the beginning of the meeting, or
promptly upon his later arrival, the director objects to holding the meeting or
transacting business at the meeting because of lack of notice or defective
notice and does not thereafter vote for or assent to action taken at the
meeting. 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.
9
Section 7. QUORUM. A majority of the number of directors fixed by the
board of directors pursuant to Article III, Section 2 or, if no number is fixed,
a majority of the number in office immediately before the meeting begins, shall
constitute a quorum for the transaction of business at any meeting of the board
of directors.
Section 8. MANNER OF ACTING. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the board
of directors.
Section 9. COMPENSATION. By resolution of the board of directors, any
director may be paid any one or more of the following: his expenses, if any, of
attendance at meetings, a fixed sum for attendance at each meeting, a stated
salary as director, or such other compensation as the corporation and the
director may reasonably agree upon. No such payment shall preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor.
Section 10. PRESUMPTION OF ASSENT. A director of the corporation who is
present at a meeting of the board of directors or committee of the board at
which action on any corporate matter is taken shall be presumed to have assented
to all action taken at the meeting unless (i) the director objects at the
beginning of the meeting, or promptly upon his arrival, to the holding of the
meeting or the transaction of business at the meeting and does not thereafter
vote for or assent to any action taken at the meeting, (ii) the director
contemporaneously requests that his dissent or abstention as to any specific
action taken be entered in the minutes of the meeting, or (iii) the director
causes written notice of his dissent or abstention as to any specific action to
be received by the presiding officer of the meeting before its adjournment or by
the secretary promptly after the adjournment of the meeting. A director may
dissent to a specific action at a meeting, while assenting to others. The right
to dissent to a specific action taken at a meeting of the board of directors or
a committee of the board shall not be available to a director who voted in favor
of such action.
Section 11. COMMITTEES. By resolution adopted by a majority of all the
directors in office when the action is taken, the board of directors may
designate from among its members an executive committee and one or more other
committees, and appoint one or more members of the board of directors to serve
on them. To the extent provided in the resolution, each committee shall have all
the authority of the board of directors, except that no such committee shall
have the authority to (i) authorize distributions, (ii) approve or propose to
shareholders actions or proposals required by the Nevada General Corporation Law
to be approved by shareholders, (iii) fill vacancies on the board of directors
or any committee thereof, (iv) amend articles of incorporation, (v) adopt, amend
or repeal the bylaws, (vi) approve a plan of merger not requiring shareholder
approval, (vii) authorize or approve the reacquisition of shares unless pursuant
to a formula or method prescribed by the board of directors, or (viii) authorize
or approve the issuance or sale of shares, or contract for the sale of shares or
determine the designations and relative rights, preferences and limitations of a
class or series of shares, except that the board of directors may authorize a
committee or officer to do so within limits specifically prescribed by the board
of directors. The committee shall then have full power within the limits set by
the board of directors to adopt any final resolution setting forth all
preferences, limitations and relative rights of such class or series and to
authorize an amendment of the articles of incorporation stating the preferences,
limitations and relative rights of a class or series for filing with the
Secretary of State under the Nevada General Corporation Law.
10
Sections 4, 5, 6, 7, 8 or 12 of Article III, which govern meetings,
notice, waiver of notice, quorum, voting requirements and action without a
meeting of the board of directors, shall apply to committees and their members
appointed under this Section 11.
Neither the designation of any such committee, the delegation of
authority to such committee, nor any action by such committee pursuant to its
authority shall alone constitute compliance by any member of the board of
directors or a member of the committee in question with his responsibility to
conform to the standard of care set forth in Article III, Section 14 of these
bylaws.
Section 12. ACTION BY DIRECTORS BY WRITTEN CONSENT. Any action required
or permitted to be taken at a meeting of the directors or any committee
designated by the board of directors may be taken without a meeting if a written
consent (or counterparts thereof) that sets forth the action so taken is signed
by all of the directors entitled to vote with respect to the action taken. Such
consent shall have the same force and effect as a unanimous vote of the
directors or committee members and may be stated as such in any document. Unless
the consent specifies a different effective time or date, action taken under
this Section 12 is effective at the time or date the last director signs a
writing describing the action taken, unless, before such time, any director has
revoked his consent by a writing signed by the director and received by the
president or the secretary of the corporation.
Section 13. TELEPHONIC MEETINGS. The board of directors may permit any
director (or any member of a committee designated by the board) to participate
in a regular or special meeting of the board of directors or a committee thereof
through the use of any means of communication by which all directors
participating in the meeting can hear each other during the meeting. A director
participating in a meeting in this manner is deemed to be present in person at
the meeting.
Section 14. STANDARD OF CARE. A director shall perform his duties as a
director, including without limitation his duties as a member of any committee
of the board, in good faith, in a manner he reasonably believes to be in the
best interests of the corporation, and with the care an ordinarily prudent
person in a like position would exercise under similar circumstances. In
performing his duties, a director shall be entitled to rely on information,
opinions, reports or statements, including financial statements and other
financial data, in each case prepared or presented by the persons herein
designated. However, he shall not be considered to be acting in good faith if he
has knowledge concerning the matter in question that would cause such reliance
to be unwarranted. A director shall not be liable to the corporation or its
shareholders for any action he takes or omits to take as a director if, in
connection with such action or omission, he performs his duties in compliance
with this Section 14.
The designated persons on whom a director is entitled to rely are (i)
one or more officers or employees of the corporation whom the director
reasonably believes to be reliable and competent in the matters presented, (ii)
legal counsel, public accountant, or other person as to matters which the
11
director reasonably believes to be within such person's professional or expert
competence, or (iii) a committee of the board of directors on which the director
does not serve if the director reasonably believes the committee merits
confidence.
ARTICLE IV
OFFICERS AND AGENTS
Section 1. GENERAL. The officers of the corporation shall be a
president, a secretary and a treasurer, and may also include one or more vice
presidents, each of which officer shall be appointed by the board of directors
and shall be a natural person eighteen years of age or older. One person may
hold more than one office. The board of directors or an officer or officers so
authorized by the board may appoint such other officers, assistant officers,
committees and agents, including a chairman of the board, assistant secretaries
and assistant treasurers, as they may consider necessary. Except as expressly
prescribed by these bylaws, the board of directors or the officer or officers
authorized by the board shall from time to time determine the procedure for the
appointment of officers, their authority and duties and their compensation,
provided that the board of directors may change the authority, duties and
compensation of any officer who is not appointed by the board.
Section 2. APPOINTMENT AND TERM OF OFFICE. The officers of the
corporation to be appointed by the board of directors shall be appointed at each
annual meeting of the board held after each annual meeting of the shareholders.
If the appointment of officers is not made at such meeting or if an officer or
officers are to be appointed by another officer or officers of the corporation,
such appointments shall be made as determined by the board of directors or the
appointing person or persons. Each officer shall hold office until the first of
the following occurs: his successor shall have been duly appointed and
qualified, his death, his resignation, or his removal in the manner provided in
Section 3.
Section 3. RESIGNATION AND REMOVAL. An officer may resign at any time
by giving written notice of resignation to the president, secretary or other
person who appoints such officer. The resignation is effective when the notice
is received by the corporation unless the notice specifies a later effective
date.
Any officer or agent may be removed at any time with or without cause
by the board of directors or an officer or officers authorized by the board.
Such removal does not affect the contract rights, if any, of the corporation or
of the person so removed. The appointment of an officer or agent shall not in
itself create contract rights.
Section 4. VACANCIES. A vacancy in any office, however occurring, may
be filled by the board of directors, or by the officer or officers authorized by
the board, for the unexpired portion of the officer's term. If an officer
resigns and his resignation is made effective at a later date, the board of
directors, or officer or officers authorized by the board, may permit the
officer to remain in office until the effective date and may fill the pending
vacancy before the effective date if the board of directors or officer or
officers authorized by the board provide that the successor shall not take
office until the effective date. In the alternative, the board of directors, or
officer or officers authorized by the board of directors, may remove the officer
at any time before the effective date and may fill the resulting vacancy.
12
Section 5. PRESIDENT. The president shall preside at all meetings of
shareholders and all meetings of the board of directors unless the board of
directors has appointed a chairman, vice chairman, or other officer of the board
and has authorized such person to preside at meetings of the board of directors.
Subject to the direction and supervision of the board of directors, the
president shall be the chief executive officer of the corporation, and shall
have general and active control of its affairs and business and general
supervision of its officers, agents and employees. Unless otherwise directed by
the board of directors, the president shall attend in person or by substitute
appointed by him, or shall execute on behalf of the corporation written
instruments appointing a proxy or proxies to represent the corporation, at all
meetings of the stockholders of any other corporation in which the corporation
holds any stock. On behalf of the corporation, the president may in person or by
substitute or by proxy execute written waivers of notice and consents with
respect to any such meetings. At all such meetings and otherwise, the president,
in person or by substitute or proxy, may vote the stock held by the corporation,
execute written consents and other instruments with respect to such stock, and
exercise any and all rights and powers incident to the ownership of said stock,
subject to the instructions, if any, of the board of directors. The president
shall have custody of the treasurer's bond, if any. The president shall have
such additional authority and duties as are appropriate and customary for the
office of president and chief executive officer, except as the same may be
expanded or limited by the board of directors from time to time.
Section 6. VICE PRESIDENTS. The vice presidents shall assist the
president and shall perform such duties as may be assigned to them by the
president or by the board of directors. In the absence of the president, the
vice president, if any (or, if more than one, the vice presidents in the order
designated by the board of directors, or if the board makes no such designation,
then the vice president designated by the president, or if neither the board nor
the president makes any such designation, the senior vice president as
determined by first election to that office), shall have the powers and perform
the duties of the president.
Section 7. SECRETARY. The secretary shall (i) prepare and maintain as
permanent records the minutes of the proceedings of the shareholders and the
board of directors, a record of all actions taken by the shareholders or board
of directors without a meeting, a record of all actions taken by a committee of
the board of directors in place of the board of directors on behalf of the
corporation, and a record of all waivers of notice of meetings of shareholders
and of the board of directors or any committee thereof, (ii) see that all
notices are duly given in accordance with the provisions of these bylaws and as
required by law, (iii) serve as custodian of the corporate records and of the
seal of the corporation and affix the seal to all documents when authorized by
the board of directors, (iv) keep at the corporation's registered office or
principal place of business a record containing the names and addresses of all
shareholders in a form that permits preparation of a list of shareholders
arranged by voting group and by class or series of shares within each voting
group, that is alphabetical within each class or series and that shows the
address of, and the number of shares of each class or series held by, each
shareholder, unless such a record shall be kept at the office of the
corporation's transfer agent or registrar, (v) maintain at the corporation's
13
principal office the originals or copies of the corporation's articles of
incorporation, bylaws, minutes of all shareholders' meetings and records of all
action taken by shareholders without a meeting for the past three years, all
written communications within the past three years to shareholders as a group or
to the holders of any class or series of shares as a group, a list of the names
and business addresses of the current directors and officers, a copy of the
corporation's most recent corporate report filed with the Secretary of State,
and financial statements showing in reasonable detail the corporation's assets
and liabilities and results of operations for the last three years, (vi) have
general charge of the stock transfer books of the corporation, unless the
corporation has a transfer agent, (vii) authenticate records of the corporation,
and (viii) in general, perform all duties incident to the office of secretary
and such other duties as from time to time may be assigned to him by the
president or by the board of directors. Assistant secretaries, if any, shall
have the same duties and powers, subject to supervision by the secretary. The
directors and/or shareholders may however respectively designate a person other
than the secretary or assistant secretary to keep the minutes of their
respective meetings.
Any books, records, or minutes of the corporation may be in written
form or in any form capable of being converted into written form within a
reasonable time.
Section 8. TREASURER. The treasurer shall be the principal financial
officer of the corporation, shall have the care and custody of all funds,
securities, evidences of indebtedness and other personal property of the
corporation and shall deposit the same in accordance with the instructions of
the board of directors. Subject to the limits imposed by the board of directors,
he shall receive and give receipts and acquittances for money paid in on account
of the corporation, and shall pay out of the corporation's funds on hand all
bills, payrolls and other just debts of the corporation of whatever nature upon
maturity. He shall perform all other duties incident to the office of the
treasurer and, upon request of the board, shall make such reports to it as may
be required at any time. He shall, if required by the board, give the
corporation a bond in such sums and with such sureties as shall be satisfactory
to the board, conditioned upon the faithful performance of his duties and for
the restoration to the corporation of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the corporation. He shall have such other powers and perform such other
duties as may from time to time be prescribed by the board of directors or the
president. The assistant treasurers, if any, shall have the same powers and
duties, subject to the supervision of the treasurer.
The treasurer shall also be the principal accounting officer of the
corporation. He shall prescribe and maintain the methods and systems of
accounting to be followed, keep complete books and records of account as
required by the Nevada General Corporation Law, prepare and file all local,
state and federal tax returns, prescribe and maintain an adequate system of
internal audit and prepare and furnish to the president and the board of
directors statements of account showing the financial position of the
corporation and the results of its operations.
14
ARTICLE V
STOCK
Section 1. CERTIFICATES. The board of directors shall be authorized to
issue any of its classes of shares with or without certificates. The fact that
the shares are not represented by certificates shall have no effect on the
rights and obligations of shareholders. If the shares are-represented by
certificates, such shares shall be represented by consecutively numbered
certificates signed, either manually or by facsimile, in the name of the
corporation by the president. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, such certificate may
nonetheless be issued by the corporation with the same effect as if he were such
officer at the date of its issue. All certificates shall be consecutively
numbered, and the names of the owners, the number of shares, and the date of
issue shall be entered on the books of the corporation. Each certificate
representing shares shall state upon its face:
(i) That the corporation is organized under the laws of
Nevada;
(ii) The name of the person to whom issued;
(iii) The number and class of the shares and the
designation of the series, if any, that the
certificate represents;
(iv) The par value, if any, of each share represented by
the certificate;
(v) Any restrictions imposed by the corporation upon the
transfer of the shares represented by the
certificate.
If shares are not represented by certificates, within a reasonable time
following the issue or transfer of such shares, the corporation shall send the
shareholder a complete written statement of all of the information required to
be provided to holders of uncertificated shares by the Nevada General
Corporation Law.
Section 2. CONSIDERATION FOR SHARES. Certificated or uncertificated
shares shall not be issued until the shares represented thereby are fully paid.
The board of directors may authorize the issuance of shares for consideration
consisting of any tangible or intangible property or benefit to the corporation,
including cash, promissory notes, services performed or other securities of the
corporation. Future services shall not constitute payment or partial payment for
shares of the corporation. The promissory note of a subscriber or an affiliate
of a subscriber shall not constitute payment or partial payment for shares of
the corporation unless the note is negotiable and is secured by collateral,
other than the shares being purchased, having a fair market value at least equal
to the principal amount of the note. For purposes of this Section 2, "promissory
note" means a negotiable instrument on which there is an obligation to pay
independent of collateral and does not include a non-recourse note.
15
Section 3. LOST CERTIFICATES. In case of the alleged loss, destruction
or mutilation of a certificate of stock, the board of directors may direct the
issuance of a new certificate in lieu thereof upon such terms and conditions in
conformity with law as the board may prescribe. The board of directors may in
its discretion require an affidavit of lost certificate and/or a bond in such
form and amount and with such surety as it may determine before issuing a new
certificate.
Section 4. TRANSFER OF SHARES. Upon surrender to the corporation or to
a transfer agent of the corporation of a certificate of stock duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, and receipt of such documentary stamps as may be required by law and
evidence of compliance with all applicable securities laws and other
restrictions, the corporation shall issue a new certificate to the person
entitled thereto, and cancel the old certificate. Every such transfer of stock
shall be entered on the stock books of the corporation which shall be kept at
its principal office or by the person and at the place designated by the board
of directors.
Except as otherwise expressly provided in Article II, Sections 7 and
11, and except for the assertion of dissenters' rights to the extent provided in
Article 113 of the Nevada General Corporation Law, the corporation shall be
entitled to treat the registered holder of any shares of the corporation as the
owner thereof for all purposes, and the corporation shall not be bound to
recognize any equitable or other claim to, or interest in, such shares or rights
deriving from such shares on the part of any person other than the registered
holder, including without limitation any purchaser, assignee or transferee of
such shares or rights deriving from such shares, unless and until such other
person becomes the registered holder of such shares, whether or not the
corporation shall have either actual or constructive notice of the claimed
interest of such other person.
Section 5. TRANSFER AGENT, REGISTRARS AND PAYING AGENTS. The board may
at its discretion appoint one or more transfer agents, registrars and agents for
making payment upon any class of stock, bond, debenture or other security of the
corporation. Such agents and registrars may be located either within or outside
Nevada. They shall have such rights and duties and shall be entitled to such
compensation as may be agreed.
ARTICLE VI
INDEMNIFICATION OF CERTAIN PERSONS
Section 1. INDEMNIFICATION. For purposes of Article VI, a "Proper
Person" means any person (including the estate or personal representative of a
director) who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, and whether formal or informal, by
reason of the fact that he is or was a director, officer, employee, fiduciary or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, partner, trustee, employee, fiduciary or agent of any
foreign or domestic profit or nonprofit corporation or of any partnership, joint
venture, trust, profit or nonprofit unincorporated association, limited
liability company, or other enterprise or employee benefit plan. The corporation
shall indemnify any Proper Person against reasonably incurred expenses
(including attorneys' fees), judgments, penalties, fines (including any excise
16
tax assessed with respect to an employee benefit plan) and amounts paid in
settlement reasonably incurred by him in connection with such action, suit or
proceeding if it is determined by the groups set forth in Section 4 of this
Article that he conducted himself in good faith and that he reasonably believed
(i) in the case of conduct in his official capacity with the corporation, that
his conduct was in the corporation's best interests, or (ii) in all other cases
(except criminal cases), that his conduct was at least not opposed to the
corporation's best interests, or (iii) in the case of any criminal proceeding,
that he had no reasonable cause to believe his conduct was unlawful. Official
capacity means, when used with respect to a director, the office of director
and, when used with respect to any other Proper Person, the office in a
corporation held by the officer or the employment, fiduciary or agency
relationship undertaken by the employee, fiduciary, or agent on behalf of the
corporation. Official capacity does not include service for any other domestic
or foreign corporation or other person or employee benefit plan.
A director's conduct with respect to an employee benefit plan for a
purpose the director reasonably believed to be in the interests of the
participants in or beneficiaries of the plan is conduct that satisfies the
requirement in (ii) of this Section 1. A director's conduct with respect to an
employee benefit plan for a purpose that the director did not reasonably believe
to be in the interests of the participants in or beneficiaries of the plan shall
be deemed not to satisfy the requirement of this section that he conduct himself
in good faith.
No indemnification shall be made under this Article VI to a Proper
Person with respect to any claim, issue or matter in connection with a
proceeding by or in the right of a corporation in which the Proper Person was
adjudged liable to the corporation or in connection with any proceeding charging
that the Proper Person derived an improper personal benefit, whether or not
involving action in an official capacity, in which he was adjudged liable on the
basis that he derived an improper personal benefit. Further, indemnification
under this section in connection with a proceeding brought by or in the right of
the corporation shall be limited to reasonable expenses, including attorneys'
fees, incurred in connection with the proceeding.
Section 2. RIGHT TO INDEMNIFICATION. The corporation shall indemnify
any Proper Person who was wholly successful, on the merits or otherwise, in
defense of any action, suit, or proceeding as to which he was entitled to
indemnification under Section 1 of this Article VI against expenses (including
attorneys' fees) reasonably incurred by him in connection with the proceeding
without the necessity of any action by the corporation other than the
determination in good faith that the defense has been wholly successful.
Section 3. EFFECT OF TERMINATION OF ACTION. The termination of any
action, suit or proceeding by judgment, order, settlement or conviction, or upon
a plea of nolo contendere or its equivalent shall not of itself create a
presumption that the person seeking indemnification did not meet the standards
of conduct described in Section 1 of this Article VI. Entry of a judgment by
consent as part of a settlement shall not be deemed an adjudication of
liability, as described in Section 2 of this Article VI.
Section 4. GROUPS AUTHORIZED TO MAKE INDEMNIFICATION DETERMINATION.
Except where there is a right to indemnification as set forth in Sections 1 or 2
of this Article or where indemnification is ordered by a court in Section 5, any
indemnification shall be made by the corporation only as determined in the
specific case by a proper group that indemnification of the Proper Person is
17
permissible under the circumstances because he has met the applicable standards
of conduct set forth in Section 1 of this Article. This determination shall be
made by the board of directors by a majority vote of those present at a meeting
at which a quorum is present, which quorum shall consist of directors not
parties to the proceeding ("Quorum"). If a Quorum cannot be obtained, the
determination shall be made by a majority vote of a committee of the board of
directors designated by the board, which committee shall consist of two or more
directors not parties to the proceeding, except that directors who are parties
to the proceeding may participate in the designation of directors for the
committee. If a Quorum of the board of directors cannot be obtained and the
committee cannot be established, or even if a Quorum is obtained or the
committee is designated and a majority of the directors constituting such Quorum
or committee so directs, the determination shall be made by (i) independent
legal counsel selected by a vote of the board of directors or the committee in
the manner specified in this Section 4 or, if a Quorum of the full board of
directors cannot be obtained and a committee cannot be established, by
independent legal counsel selected by a majority vote of the full board
(including directors who are parties to the action) or (ii) a vote of the
shareholders.
Authorization of indemnification and advance of expenses shall be made
in the same manner as the determination that indemnification or advance of
expenses is permissible except that, if the determination that indemnification
or advance of expenses is permissible is made by independent legal counsel,
authorization of indemnification and advance of expenses shall be made by the
body that selected such counsel.
Section 5. COURT-ORDERED INDEMNIFICATION. Any Proper Person may apply
for indemnification to the court conducting the proceeding or to another court
of competent jurisdiction for mandatory indemnification under Section 2 of this
Article, including indemnification for reasonable expenses incurred to obtain
court-ordered indemnification. If a court determines that the Proper Person is
entitled to indemnification under Section 2 of this Article, the court shall
order indemnification, including the Proper Person's reasonable expenses
incurred to obtain court-ordered indemnification. If the court determines that
such Proper Person is fairly and reasonably entitled to indemnification in view
of all the relevant circumstances, whether or not he met the standards of
conduct set forth in Section 1 of this Article or was adjudged liable in the
proceeding, the court may order such indemnification as the court deems proper
except that if the Proper Person has been adjudged liable, indemnification shall
be limited to reasonable expenses incurred in connection with the proceeding and
reasonable expenses incurred to obtain court-ordered indemnification.
Section 6. ADVANCE OF EXPENSES. Reasonable expenses (including
attorneys' fees) incurred in defending an action, suit or proceeding as
described in Section 1 may be paid by the corporation to any Proper Person in
advance of the final disposition of such action, suit or proceeding upon receipt
of (i) a written affirmation of such Proper Person's good faith belief that he
has met the standards of conduct prescribed by Section 1 of this Article VI,
(ii) a written undertaking, executed personally or on the Proper Person's
behalf, to repay such advances if it is ultimately determined that he did not
meet the prescribed standards of conduct (the undertaking shall be an unlimited
general obligation of the Proper Person but need not be secured and may be
18
accepted without reference to financial ability to make repayment), and (iii) a
determination is made by the proper group (as described in Section 4 of this
Article VI) that the facts as then known to the group would not preclude
indemnification. Determination and authorization of payments shall be made in
the same manner specified in Section 4 of this Article VI.
Section 7. ADDITIONAL INDEMNIFICATION TO CERTAIN PERSONS OTHER THAN
DIRECTORS. In addition to the indemnification provided to officers, employees,
fiduciaries or agents because of their status as Proper Persons under this
Article, the corporation may also indemnify and advance expenses to them if they
are not directors of the corporation to a greater extent than is provided in
these bylaws, if not inconsistent with public policy, and if provided for by
general or specific action of its board of directors or shareholders or by
contract.
Section 8. WITNESS EXPENSES. The sections of this Article VI do not
limit the corporation's authority to pay or reimburse expenses incurred by a
director in connection with an appearance as a witness in a proceeding at a time
when he has not been made or named as a defendant or respondent in the
proceeding.
Section 9. REPORT TO SHAREHOLDERS. Any indemnification of or advance of
expenses to a director in accordance with this Article VI, if arising out of a
proceeding by or on behalf of the corporation, shall be reported in writing to
the shareholders with or before the notice of the next shareholders' meeting. If
the next shareholder action is taken without a meeting at the instigation of the
board of directors, such notice shall be given to the shareholders at or before
the time the first shareholder signs a writing consenting to such action.
ARTICLE VII
PROVISION OF INSURANCE
Section 1. PROVISION OF INSURANCE. By action of the board of directors,
notwithstanding any interest of the directors in the action, the corporation may
purchase and maintain insurance, in such scope and amounts as the board of
directors deems appropriate, on behalf of any person who is or was a director,
officer, employee, fiduciary or agent of the corporation, or who, while a
director, officer, employee, fiduciary or agent of the corporation, is or was
serving at the request of the corporation as a director, officer, partner,
trustee, employee, fiduciary or agent of any other foreign or domestic profit or
nonprofit corporation or of any partnership, joint venture, trust, profit or
nonprofit unincorporated association, limited liability company, other
enterprise or employee benefit plan, against any liability asserted against, or
incurred by, him in that capacity or arising out of his status as such, whether
or not the corporation would have the power to indemnify him against such
liability under the provisions of Article VI or applicable law. Any such
insurance may be procured from any insurance company designated by the board of
directors of the corporation, whether such insurance company is formed under the
laws of Nevada or any other jurisdiction of the United States or elsewhere,
including any insurance company in which the corporation has an equity interest
or any other interest, through stock ownership or otherwise.
19
ARTICLE VIII
MISCELLANEOUS
Section 1. SEAL. The board of directors may adopt a corporate seal,
which shall contain the name of the corporation and the words, "Seal, Nevada."
Section 2. FISCAL YEAR. The fiscal year of the corporation shall be as
established by the board of directors.
Section 3. AMENDMENTS. The board of directors shall have power, to the
maximum extent permitted by the Nevada General Corporation Law, to make, amend
and repeal the bylaws of the corporation at any regular or special meeting of
the board unless the shareholders, in making, amending or repealing a particular
bylaw, expressly provide that the directors may not amend or repeal such bylaw.
The shareholders also shall have the power to make, amend or repeal the bylaws
of the corporation at any annual meeting or at any special meeting called for
that purpose.
Section 4. RECEIPT OF NOTICES BY THE CORPORATION. Notices, shareholder
writings consenting to action, and other documents or writings shall be deemed
to have been received by the corporation when they are actually received: (1) at
the registered office of the corporation in Nevada; (2) at the principal office
of the corporation (as that office is designated in the most recent document
filed by the corporation with the secretary of state for Nevada designating a
principal office) addressed to the attention of the secretary of the
corporation; (3) by the secretary of the corporation wherever the secretary may
be found; or (4) by any other person authorized from time to time by the board
of directors or the president to receive such writings, wherever such person is
found.
Section 5. GENDER. The masculine gender is used in these bylaws as a
matter of convenience only and shall be interpreted to include the feminine and
neuter genders as the circumstances indicate.
Section 6. CONFLICTS. In the event of any irreconcilable conflict
between these bylaws and either the corporation's articles of incorporation or
applicable law, the latter shall control.
Section 7. DEFINITIONS. Except as otherwise specifically provided in
these bylaws, all terms used in these bylaws shall have the same definition as
in the Nevada General Corporation Law.
20