UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14C INFORMATION
Information
Statement Pursuant to Section 14(c)
of
the
Securities Exchange Act of 1934
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Check
the appropriate box:
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Preliminary
Information Statement
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Confidential,
for the use of the Commission only (as permitted by Rule
14c-5(d)(2))
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Definitive
Information Statement
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SMI
PRODUCTS, INC.
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(Name
of Registrant as Specified in Its Charter)
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Payment
of Filing Fee (Check the appropriate box):
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x
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No
fee required.
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Fee
computed on table below per Exchange Act Rules 14c-5(g) and
0-11.
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(1)
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Title
of each class of securities to which transaction applies:
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(2)
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Aggregate
number of securities to which transaction applies:
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(3)
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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):
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(4)
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Proposed
maximum aggregate value of transaction:
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(5)
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Total
fee paid:
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Fee
paid previously with preliminary materials:
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Check
box if any part of the fee is offset as provided by Exchange Act
Rule
0-1l(a)(2) and identify the filing for which the offsetting fee was
paid
previously. Identify the previous filing by registration statement
number,
or the Form or Schedule and the date of its filing.
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(1)
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Amount
Previously Paid:
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(2)
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Form,
Schedule or Registration Statement No.:
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(3)
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Filing
Party:
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(4)
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Date
Filed:
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SMI
PRODUCTS, INC.
122
Ocean Park Blvd., Suite 307
Santa
Monica, CA 90405
NOTICE
OF
STOCKHOLDER ACTION BY WRITTEN CONSENT
To
our
Stockholders:
The
purpose of this letter is to inform you that the Board of Directors of SMI
Products, Inc., a Nevada corporation (hereinafter referred to as “our company”
or “SMI”), and the holder of a majority of the outstanding shares of our
common stock, have approved the following corporate actions by written consent
in lieu of a meeting pursuant to Section 78.320 of the Nevada General
Corporation Law:
The
reincorporation merger of our company pursuant to which we will merge with
and
into SMI Products, Inc., a Delaware corporation (“SMI-Delaware”) formed by us
for such purposes, which will result in:
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a
change of domicile of our company from the State of Nevada to
the State of Delaware;
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your
right to receive one (1) share of common stock, par value $0.001
per
share, of SMI-Delaware for each ten (10) shares of our common stock,
par
value $0.001 per share, owned by you as of the effective time of
the
reincorporation merger;
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the
persons presently serving as our executive officers and directors
serving
in their same respective positions with SMI
Delaware;
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the
adoption of a new Certificate of Incorporation under the laws of
the State
of Delaware, pursuant to which our authorized capital stock will
be
changed from 100,000,000 shares of authorized capital stock, all
of which
are common stock, par value $0.001 per share, to 110,000,000 shares
of
authorized capital stock, consisting of 100,000,000 shares of common
stock, par value $0.001 per share, and 10,000,000 shares of “blank check”
preferred stock, par value $0.001 per share, with the right conferred
upon
the Board of Directors to set the dividend, voting, conversion,
liquidation and other rights, as well as the qualifications, limitations
and restrictions, with respect to the preferred stock as the Board
of
Directors may determine from time to time; and
the
adoption of new Bylaws under the laws of the State of
Delaware.
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The
accompanying Information Statement, which describes the above corporate actions
in more detail, is being furnished to stockholders of SMI Products, Inc. for
informational purposes only, pursuant to Section 14(c) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and
regulations prescribed thereunder. Pursuant to Rule 14c-2 under the Exchange
Act, these corporate actions will not be effected until at least twenty (20)
calendar days after the mailing of this Information Statement to the
stockholders of SMI Products, Inc. The reincorporation merger described above
will be effective after the expiration of such twenty (20) day period, at such
time as Articles of Merger are filed with the Secretary of State of Nevada
and a
Certificate of Merger is filed with the Secretary of State of Delaware,
respectively, to effect the reincorporation merger, which will have the effects
summarized above and described in more detail in the accompanying Information
Statement.
YOU
HAVE
THE RIGHT TO EXERCISE DISSENTERS’ RIGHTS UNDER NEVADA REVISED STATUTES
92A.300-.500, AND OBTAIN THE “FAIR VALUE” OF YOUR SHARES OF SMI PRODUCTS, INC.,
A NEVADA CORPORATION, INC. COMMON STOCK, PROVIDED THAT YOU COMPLY WITH THE
CONDITIONS ESTABLISHED UNDER APPLICABLE NEVADA LAW. FOR A DISCUSSION REGARDING
YOUR DISSENTERS’ RIGHTS, SEE THE SECTION TITLED “REINCORPORATION IN DELAWARE;
DISSENTERS’ RIGHTS OF APPRAISAL” IN THE ACCOMPANYING INFORMATION STATEMENT AND
EXHIBIT
D
THERETO,
WHICH SETS FORTH THOSE STATUTES.
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By
Order of the Board of Directors
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October
18, 2006
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/s/
Geoffrey Alison |
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Geoffrey
Alison
Chief
Executive Officer
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SMI
PRODUCTS, INC.
122
Ocean Park Blvd., Suite 307
Santa
Monica, CA 90405
INFORMATION
STATEMENT
October
18, 2006
This
Information Statement is being mailed to the stockholders of SMI Products,
Inc.,
a Nevada corporation (hereinafter referred to as “our company” or “SMI”), on or
about October 20 , 2006 in connection with the corporate actions
referred to below. On September 25, 2006, our Board of Directors and the
holder of a majority of the issued and outstanding shares of our common stock,
par value $0.001 per share, entitled to vote on the matters set forth herein
(the “Consenting Stockholder”) approved such matters. Accordingly, this
Information Statement is furnished solely for the purpose of informing
stockholders, in the manner required under Regulation 14C of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), of these corporate
actions. No other stockholder approval is required. The record date
for determining stockholders entitled to receive this Information Statement
has
been established as the close of business on September 1, 2006 (the “Record
Date”).
WE
ARE NOT ASKING YOU FOR A PROXY AND YOU ARE
REQUESTED
NOT TO SEND US A PROXY.
CORPORATE
ACTIONS
The
Nevada General Corporation Law permits the holders of a majority of the
outstanding shares of our common stock to approve and authorize actions by
written consent as if the action were undertaken at a duly constituted meeting
of our stockholders. On September 25, 2006, the Consenting Stockholder,
who holds an aggregate of 5,551,000 shares of our common stock, representing
approximately 73.5% of the total shares of our common stock entitled to vote
on
the matters set forth below, consented in writing, without a meeting, to the
matters described below. As a result, no further votes will be needed to
approve the matters set forth herein. As of the Record Date, we had
outstanding 7,551,000 shares of our common stock.
Our
Board
of Directors and the Consenting Stockholder have consented to the adoption
of
the Agreement and Plan of Merger between our company and SMI Products, Inc.,
a
Delaware corporation formed by us (“SMI-Delaware”), in the form of Exhibit
A
attached
to this Information Statement (the “Reincorporation Merger Agreement”).
The Reincorporation Merger Agreement provides for the merger of our company
with
and into SMI Delaware (the “Reincorporation Merger”), and will result
in:
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a
change of domicile of our company from the State of Nevada to
the State of Delaware;
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your
right to receive one (1) share of common stock, par value $0.001
per
share, of SMI-Delaware for each ten (10) shares of our common stock,
par
value $0.001 per share, owned by you as of the effective time of
the
reincorporation merger;
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the
persons presently serving as our executive officers and directors
serving
in their same respective positions with SMI
Delaware;
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the
adoption of a new Certificate of Incorporation under the laws of
Delaware
in the form of Exhibit
B
attached to this Information Statement, pursuant to which our authorized
capital stock will be changed from 100,000,000 shares of authorized
capital stock, all of which are common stock, par value $0.001 per
share,
to 110,000,000 shares of authorized capital stock, consisting of
500,000,000 shares of common stock, par value $0.001 per share, and
10,000,000 shares of “blank check” preferred stock, par value $0.001 per
share, with the right conferred upon the Board of Directors to set
the
dividend, voting, conversion, liquidation and other rights, as well
as the
qualifications, limitations and restrictions, with respect to the
preferred stock as the Board of Directors may determine from time
to time;
and
the
adoption of new Bylaws under the laws of the State of Delaware in
the form
of Exhibit
C
attached to this Information
Statement.
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We
will
pay the expenses of furnishing this Information Statement, including the cost
of
preparing, assembling and mailing this Information Statement.
YOU
HAVE
THE RIGHT TO EXERCISE DISSENTERS’ RIGHTS UNDER NEVADA REVISED STATUTES SECTIONS
92A.300-.500, AND OBTAIN THE “FAIR VALUE” OF YOUR SHARES OF SMI PRODUCTS, INC.,
A NEVADA CORPORATION, INC. COMMON STOCK, PROVIDED THAT YOU COMPLY WITH THE
CONDITIONS ESTABLISHED UNDER APPLICABLE NEVADA LAW. FOR A DISCUSSION
REGARDING YOUR DISSENTERS’ RIGHTS, SEE THE SECTION TITLED “DISSENTERS’ RIGHT OF
APPRAISAL” AND EXHIBIT
D
HERETO,
WHICH SETS FORTH THOSE STATUTES.
SECURITY
OWNERSHIP OF CERTAIN
BENEFICIAL
OWNERS AND MANAGEMENT
The
following table sets forth certain information regarding beneficial stock
ownership as of September 1, 2006 of (i) all persons known to us to be
beneficial owners of more than 5% of our outstanding common stock; (ii) each
director of our company and our executive officers, and (iii) all of our
officers and directors as a group. Each of the persons in the table below
has sole voting power and sole dispositive power as to all of the shares shown
as beneficially owned by them, except as otherwise indicated.
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Name
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Number
of Shares
Beneficially
Owned(1)
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Percent
of
Outstanding
Shares(1)
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Fountainhead
Capital Partners Limited
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c/oJordans
(C.I.) Limited
PO
Box 456
Portman
House
Hue
Street
St
Helier
Jersey
JE4 5RP
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Geoffrey
Alison
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5000
Noeline Ave.
Encino,
CA 91436
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Officers
and directors as a group (four persons)
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0
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0.00
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For
the purposes of this table, a person is deemed to have “beneficial
ownership” of any shares of capital stock that such person has the right
to acquire within 60 days of September 1, 2006. All percentages for
common stock are calculated based upon a total of 7,551,000 shares
outstanding as of September 1, 2006, plus, in the case of the person
for
whom the calculation is made, that number of shares of common stock
that
such person has the right to acquire within 60 days of September
1,
2006.
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On
August
11, 2006, certain stockholders (“Sellers”) of our company entered into a Stock
Purchase Agreement with Fountainhead Capital Partners Limited. (the
“Purchaser”), pursuant to which the Sellers agreed to sell to the Purchaser
certain notes together with 5,551,000 shares of our company’s common stock (the
“Shares”) for a purchase price (the “Purchase Price”), in the aggregate, of
$637,500, plus the amount of any cash or cash equivalents on our company’s
balance sheet as of the closing of the transactions contemplated by the Stock
Purchase Agreement. The Shares represent approximately 73.5% of the issued
and
outstanding capital stock of our company calculated on a fully-diluted
basis
REINCORPORATION
IN DELAWARE
On
September 25, 2006, our Board of Directors and the Consenting Stockholder
approved the Reincorporation Merger Agreement, which provides for, among other
things, the change of our domicile from the State of Nevada to the State of
Delaware, the adoption of a Certificate of Incorporation and Bylaws under the
State of Delaware, the increase in our authorized capital stock to 110 million
shares, consisting of 100 million shares of common stock and 10 million shares
of “blank check” preferred stock. and the issuance of one (1) share of common
stock, par value $0.001 per share, of SMI-Delaware for each ten (10) shares
of
our company’s common stock, par value $0.001 per share, owned by you as of the
effective time of the reincorporation merger.
The
following questions and answers are intended to respond to frequently asked
questions concerning our reincorporation in Delaware. These questions do
not, and are not intended to, address all the questions that may be important
to
you. You should carefully read the entire Information Statement, as well
as its exhibits.
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Q:
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Why
are we reincorporating in Delaware?
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A:
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We
believe the reincorporation in Delaware will give us more flexibility
and
simplicity in various corporate transactions. Delaware has adopted a
General Corporation Law that includes by statute many concepts created
by
judicial rulings in other jurisdictions. Delaware provides a
recognized body of corporate law that is consistently interpreted
by
Delaware courts, thus facilitating corporate governance by our officers
and directors.
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Q:
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Why
are we not soliciting proxies to approve the
reincorporation?
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A:
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Our
Board of Directors has already approved the Reincorporation Merger
and has
received the written consent of stockholders owning a majority of
our
outstanding shares of common stock, without the need to solicit
votes. Under Nevada law, this transaction may be approved by the
written consent of a majority of the shares entitled to vote, without
the
necessity of convening a formal meeting of stockholders. Since we
have already received written consents representing the necessary
number
of shares, a meeting is not necessary and represents to us a substantial
cost savings.
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Q:
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What
are the principal features of the Reincorporation
Merger?
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A:
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The
reincorporation will be accomplished by merging SMI Products, Inc.,
a
Nevada corporation with and into a newly formed Delaware corporation,
SMI
Products, Inc., a Delaware corporation. The Certificate of
Incorporation of SMI-Delaware will become the Certificate of Incorporation
of the surviving entity. One (1) new share of SMI-Delaware common
stock will be issued in exchange for each ten (10) outstanding shares
of
our common stock held by our shareholders at the effective time of
the
Reincorporation Merger. Shares of SMI-Delaware will be eligible to
be quoted on the Over-the-Counter Bulletin Board beginning on or
about the
effective date of the Reincorporation Merger under a new CUSIP number
and
trading symbol that have not yet been assigned.
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Q:
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What
are the differences between Delaware and Nevada law?
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A:
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There
are some differences between the laws of the State of Nevada and
State of
Delaware that impact your rights as a stockholder. For information
regarding the differences between the corporate laws of the State
of
Delaware and those of the State of Nevada, please see “Significant Changes
Caused by the Reincorporation; Change in Charter and
Bylaws.”
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Q:
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How
will the Reincorporation Merger affect my ownership?
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A:
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Your
proportionate ownership interest will not be affected by the
Reincorporation Merger.
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Q:
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How
will the Reincorporation Merger affect our officers, directors and
employees?
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A:
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Our
officers, directors and employees will become the officers, directors
and
employees of SMI-Delaware after the effective date of the Reincorporation
Merger.
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Q:
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What
do I do with my stock certificates?
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A:
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Delivery
of your certificates issued prior to the effective date of the
reincorporation will constitute “good delivery” of shares in transactions
subsequent to reincorporation. Certificates representing shares of
SMI-Delaware will be issued with respect to transfers occurring after
the
Reincorporation Merger. New certificates will also be issued upon
the request of any stockholder, subject to normal requirements as
to
proper endorsement, signature guarantee, if required, and payment
of
applicable taxes. IT WILL NOT BE NECESSARY FOR OUR STOCKHOLDERS TO
EXCHANGE THEIR EXISTING STOCK CERTIFICATES FOR CERTIFICATES OF
SMI-DELAWARE. OUTSTANDING STOCK CERTIFICATES OF SMI PRODUCTS, INC.,
A NEVADA COIRPORATION SHOULD NOT BE DESTROYED OR SENT TO
US.
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Q:
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What
if I have lost my certificate?
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A:
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If
you have lost your certificate, you can contact our transfer agent
to have
a new certificate issued. You may be required to post a bond or
other security to reimburse us for any damages or costs if the certificate
is later delivered for sale or transfer. Our transfer agent may be
reached at:
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Transfer
Online, Inc.
317
SW Alder Street, 2nd Floor
Portland,
OR 97204
503.227.2950
Attn:
Mark Knight
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Q:
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Can
I require the company to purchase my stock?
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Yes.
Under Nevada law, you are entitled to appraisal and purchase of your
stock
as a result of the reincorporation. See the section entitled
“Dissenters’ Right of Appraisal.”
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Q:
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Who
will pay the costs of reincorporation?
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A:
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We
will pay all of the costs of reincorporation in Delaware, including
the
costs of preparing and distributing this Information Statement. We
may also pay brokerage firms and other custodians for their reasonable
expenses for forwarding information materials to the beneficial owners
of
our common stock. We do not anticipate contracting for other
services in connection with the reincorporation.
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Q:
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Will
I have to pay taxes on the new certificates?
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A:
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We
believe the reincorporation is not a taxable event and that you will
be
entitled to the same tax basis in the shares of SMI-Delaware that
you had
in your shares of our common stock. However, every stockholder’s tax
situation is different, and you should consult with your personal tax
advisor regarding the tax effect of the
reincorporation.
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THE
DISCUSSION CONTAINED IN THIS INFORMATION STATEMENT IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO THE REINCORPORATION MERGER AGREEMENT, THE SMI PRODUCTS, INC.,
A
DELAWARE CORPORATION, CERTIFICATE OF INCORPORATION AND BYLAWS, AND BY THE
APPLICABLE PROVISIONS OF NEVADA CORPORATE LAW AND DELAWARE CORPORATE
LAW.
The
following discussion summarizes the important aspects of our reincorporation
in
Delaware. This summary does not include all of the provisions of the
Reincorporation Merger Agreement, the Certificate of Incorporation of
SMI-Delaware or the Bylaws of SMI-Delaware, the forms of which are attached
as
Exhibits
A, B
and
C,
respectively. Copies of the Articles of Incorporation and the Bylaws of
SMI Products, Inc., a Nevada corporation are available for inspection at our
principal office, and we will send copies to stockholders upon
request.
Principal
Reasons for Reincorporation in Delaware
We
believe that the reincorporation in Delaware will provide a greater measure
of
flexibility and simplicity in corporate transactions and reduce taxes and other
costs of doing business. Delaware provides a recognized body of corporate
law that will facilitate corporate governance by our officers and
directors. For many years, Delaware has followed a policy of
encouraging incorporation in that state and, in furtherance of that policy,
has
adopted comprehensive, modern and flexible corporate laws that are periodically
updated and revised to meet changing business needs. As a result, many
major corporations have initially chosen Delaware for their domicile or have
subsequently reincorporated in Delaware in a manner similar to that which we
proposed. Because of Delaware’s longstanding policy of encouraging
incorporation in that state, and consequently its preeminence as the state
of
incorporation for many major corporations, the Delaware courts have developed
a
considerable expertise in dealing with corporate issues and a substantial body
of case law has developed construing Delaware law and establishing public
policies with respect to Delaware corporations. It is anticipated that
Delaware corporate law will continue to be interpreted and explained in a number
of significant court decisions that may provide greater predictability with
respect to our corporate legal affairs. For a discussion of some
differences in stockholders’ rights and the powers of management under Delaware
law and Nevada law, see “Significant
Changes Caused by the Reincorporation; Change in Charter and
Bylaws.”
Principal
Features of the Reincorporation
The
reincorporation in Delaware will be effected by our merger with and into
SMI-Delaware, which was incorporated by us in Delaware specifically for this
purpose. SMI-Delaware, which will be the surviving entity, has not engaged
in any activities except in connection with the reincorporation. Our
Board of Directors has approved, and recommended to our stockholders, and the
holder of a majority of our outstanding shares of common stock has adopted
and
approved, the Reincorporation Merger Agreement pursuant to which our company
will be merged with and into SMI-Delaware. This Information Statement
summarizes the material terms of the Reincorporation Merger Agreement, as well
as the Certificate of Incorporation and Bylaws of SMI-Delaware, the successor
Delaware company under which our business will be conducted after the
reincorporation. The full texts of the Reincorporation Merger Agreement,
the Certificate of Incorporation and Bylaws are attached as Exhibits
A, B
and
C,
respectively. Upon effectiveness of the reincorporation, SMI Products,
Inc., a Nevada corporation will be merged with and into SMI-Delaware pursuant
to
the Reincorporation Merger Agreement, resulting in a change of our state of
incorporation from Nevada to Delaware. We will then be subject to the
Delaware General Corporation Law and the Certificate of Incorporation and Bylaws
of SMI-Delaware, which will replace our current Articles of Incorporation and
Bylaws. These changes may alter the rights of our stockholders.
See “Significant
Changes Caused by the Reincorporation; Change in Charter and
Bylaws.”
Effective
Date of Merger.
The
effectiveness of the reincorporation is conditioned upon the filing of Articles
of Merger with the State of Nevada and a Certificate of Merger with the State
of
Delaware. We anticipate the reincorporation will become effective twenty
(20) days after the date of mailing of this Information Statement. As a
result of the reincorporation, we will cease our corporate existence in the
State of Nevada.
No
Change in Business, Management, Board Members, Assets or
Liabilities.
The
reincorporation will not result in any changes in our business, management,
assets, liabilities or net worth. Upon completion of the reincorporation,
SMI-Delaware will succeed by operation of law to all of our business, assets
and
liabilities. The Board of Directors and officers of SMI-Delaware will
consist of the same persons serving as our directors and officers prior to
the
reincorporation. Our daily business operations will continue at our
principal executive offices at 122 Ocean Park Blvd., Suite 307, Santa Monica,
CA
90405.
Exchange
of Stock Certificates.
IT
WILL
NOT BE NECESSARY FOR OUR STOCKHOLDERS TO EXCHANGE THEIR EXISTING STOCK
CERTIFICATES FOR CERTIFICATES OF SMI-DELAWARE; OUTSTANDING STOCK CERTIFICATES
OF
OUR COMPANY SHOULD NOT BE DESTROYED OR SENT TO US. The common stock of
SMI-Delaware will be quoted on the OTC Bulletin Board, which will consider
the
existing stock certificates as constituting “good delivery” in transactions
subsequent to the reincorporation.
Significant
Changes Caused by the Reincorporation
Change
in Authorized Capital
Our
current authorized capital consists of 100,000,000 shares of capital stock,
all
of which are shares of common stock, par value $0.001 per share. Following
the reincorporation, our authorized capital will continue to consist of
110,000,000 shares of capital stock, consisting of 100,000,000 shares of common
stock, par value $0.001 per share and 10,000,000 shares of preferred stock,
par
value $0.001 per share, with the right conferred upon the Board of Directors
to
set the dividend, voting, conversion, liquidation and other rights, as well
as
the qualifications, limitations and restrictions, with respect to such preferred
stock as the Board of Directors may determine from time to time. On the Record
Date of this Information Statement, there were 7,551,000 shares of our common
stock and no shares of preferred stock. issued and outstanding. As a
result of the Reincorporation Merger and the one-for-ten exchange contemplated
by the Reincorporation Merger, we will have outstanding 755,100 shares of common
stock. As of the Record Date, we had no outstanding warrants or stock
options.
We
have
no present plans, understandings or agreements, and we are not engaged in any
negotiations, that will involve the issuance of capital stock. However,
our Board of Directors believes it prudent to have shares of capital stock
available for such corporate purposes as our Board of Directors may from time
to
time deem necessary and advisable, including for acquisitions and the raising
of
additional capital. We currently have no arrangements or understandings
for the issuance of additional shares of capital stock, although opportunities
for acquisitions and equity financings could arise at any time.
Change
in Charter and Bylaws
We
are
incorporated under the laws of the State of Nevada, and SMI-Delaware is
incorporated under the laws of the State of Delaware. Our corporate
affairs are currently governed by Nevada corporate law and our Articles of
Incorporation and Bylaws, which were created pursuant to Nevada law. On
the effective date of the reincorporation, issues of corporate governance and
control will be controlled by Delaware law and SMI-Delaware’s Certificate of
Incorporation and Bylaws, which were created under Delaware
law.
The
following discussion summarizes briefly some of the changes resulting from
the
Reincorporation Merger and certain significant differences between Nevada
corporate law and Delaware corporate law. The following discussion does
not purport to be a complete statement of such laws. Stockholders should
refer to the Delaware General Corporation Law and the Nevada General Corporation
Law to understand how these laws apply to SMI-Delaware and our company,
respectively.
Classified
Board of Directors.
Delaware law permits any Delaware corporation to classify its board of directors
into as many as three classes as equally as possible with staggered terms of
office. After initial implementation of a classified board, one class will
be elected at each annual meeting of the stockholders to serve for a term of
one, two or three years (depending upon the number of classes into which
directors are classified) or until their successors are elected and take
office. Nevada law also permits corporations to classify boards of
directors provided that at least one-fourth of the total number of directors
is
elected annually. We do not have a classified board, and it is not
currently expected that SMI-Delaware’s board of directors will be classified in
the near future.
Removal
of
Directors.
With respect to removal of directors, under Nevada law, any one or all of the
directors of a corporation may be removed by the holders of not less than
two-thirds of the voting power of a corporation’s issued and outstanding
stock. Nevada does not distinguish between removal of directors with or
without cause. Under Delaware law, directors of a corporation without a
classified board may be removed with or without cause, by the holders of a
majority of shares then entitled to vote in an election of
directors.
Dividend
Rights and Repurchase of Shares.
Delaware law is more restrictive than Nevada law with respect to when dividends
may be paid. Under Delaware law, unless further restricted in the
certificate of incorporation, a corporation may declare and pay dividends out
of
surplus, or if no surplus exists, out of net profits for the fiscal year in
which the dividend is declared and/or the preceding fiscal year (provided that
the amount of capital of the corporation is not less than the aggregate amount
of the capital represented by the issued and outstanding stock of all classes
having a preference upon the distribution of assets). In addition,
Delaware law provides that a corporation may redeem or repurchase its shares
only if the capital of the corporation is not impaired and such redemption
or
repurchase would not impair the capital of the corporation.
Nevada
law provides that no distribution (including dividends on, or redemption or
repurchases of, shares of capital stock) may be made if, after giving effect
to
such distribution, the corporation would not be able to pay its debts as they
become due in the usual course of business, or, except as specifically permitted
by the articles of incorporation, the corporation’s total assets would be less
than the sum of its total liabilities plus the amount that would be needed
at
the time of a dissolution to satisfy the preferential rights of preferred
stockholders.
Indemnification
of Directors and Officers. Both
Delaware and Nevada, in a substantially similar manner, permit a corporation
to
indemnify officers, directors, employees and agents for actions taken in good
faith and in a manner they reasonably believed to be in, or not opposed to,
the
best interests of the corporation and, with respect to any criminal action,
which they had no reasonable cause to believe were unlawful. Both our
company and SMI-Delaware provide for such indemnification under their respective
charters and bylaws.
Limitation
on Personal Liability of Directors.
A
Delaware corporation is permitted to adopt provisions in its certificate of
incorporation limiting or eliminating the liability of a director to a company
and its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such liability does not arise from certain proscribed
conduct, including breach of the duty of loyalty, acts or omissions not in
good
faith or that involve intentional misconduct or a knowing violation of law
or
liability to the corporation based on unlawful dividends or distributions or
improper personal benefit. SMI-Delaware’s Certificate of Incorporation
will limit the liability of directors to SMI-Delaware to the fullest extent
permitted by law.
While
Nevada law has a similar provision permitting the adoption of provisions in
the
articles of incorporation limiting personal liability, the Nevada provision
does
differ from the Delaware provision. First, the Nevada provision applies to
both
directors and officers. Second, a Nevada corporation is not allowed to
limit the liability of an officer or director if it is proven that his act
or
failure to act constituted a breach of his fiduciary duties as a director or
officer and his breach of those duties involved intentional misconduct, fraud
or
a knowing violation of law.
Amendment
to Certificate of Incorporation/Articles of Incorporation or
Bylaws.
In general, both Delaware law and Nevada law require the approval of the holders
of a majority of all outstanding shares entitled to vote to approve proposed
amendments to a corporation’s certificate/articles of incorporation. Both
Delaware law and Nevada law also provide that, in addition to the vote described
above, the vote of a majority of the outstanding shares of a class may be
required to amend the certificate/articles of incorporation. Neither state
requires stockholder approval for the board of directors of a corporation to
fix
the voting powers, designation, preferences, limitations, restrictions and
rights of a class of stock provided that the corporation’s organizational
documents grant such power to its board of directors. Both Nevada law and
Delaware law permit, in general, the number of authorized shares of any such
class of stock to be increased or decreased (but not below the number of shares
then outstanding) by the board of directors unless otherwise provided in the
articles of incorporation or resolution adopted pursuant to the certificate
of
incorporation, respectively.
Actions
by Written Consent of Stockholders.
Nevada law and Delaware law each provide that, unless the articles/certificate
of incorporation provide otherwise, any action required or permitted to be
taken
at a meeting of the stockholders may be taken without a meeting if the holders
of outstanding stock having at least the minimum number of votes that would
be
necessary to authorize or take such action at a meeting consent to the action
in
writing. In addition, Delaware law requires the corporation to give prompt
notice of the taking of corporate action without a meeting by less than
unanimous written consent to those stockholders who did not consent in writing.
Our Bylaws provide that stockholder action by written consent is
permitted. SMI-Delaware’s Bylaws follow the statutory guidelines set forth
above.
Certain
Federal Income Tax Consequences of the Reincorporation
The
following is a discussion of certain federal income tax consequences to holders
of our common stock who receive shares of SMI-Delaware common stock in exchange
for their SMI Products, Inc., a Nevada corporation common stock as a result
of
the Reincorporation Merger. The discussion is based on the Internal
Revenue Code of 1986, as amended (“Code”), and laws, regulations, rulings and
decisions in effect as of the date of this Information Statement, all of which
are subject to change, possibly with retroactive effect, and to differing
interpretations. No state, local or foreign tax consequences are addressed
herein.
This
discussion is for general information only and does not purport to be a complete
discussion or analysis of all potential tax consequences that may apply to
a
stockholder. In view of the varying nature of such tax consequences,
stockholders are urged to consult their own tax advisors as to the specific
tax
consequences to them of the Reincorporation Merger, including the applicability
of federal, state, local or foreign tax laws.
We
believe that, for federal income tax purposes, no gain or loss will be
recognized by our company, SMI-Delaware or our stockholders who receive
SMI-Delaware common stock for their shares of our common stock in connection
with the reincorporation. The aggregate tax basis of the shares of
SMI-Delaware common stock received by a stockholder of our company as a result
of the reincorporation will be the same as the stockholder’s aggregate tax basis
in the shares of our common stock converted into such shares of SMI-Delaware
common stock. A stockholder who holds our common stock will include in his
holding period for the SMI-Delaware common stock that he receives as a result
of
the reincorporation, his holding period for our common stock.
Because
of the complexity of the capital gains and loss provisions of the Code and
the
uniqueness of each individual’s capital gain or loss situation, stockholders
contemplating exercising statutory dissenters’ rights should consult their own
tax advisors regarding the federal income tax consequences of exercising such
rights. Additionally, state, local or foreign income tax consequences to
stockholders may vary from the federal income tax consequences described above,
and STOCKHOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS AS TO THE
CONSEQUENCES TO THEM OF THE REINCORPORATION UNDER ALL APPLICABLE TAX
LAWS.
Dissenters’
Right of Appraisal
Common
stockholders of our company that follow the appropriate procedures are entitled
to dissent from the consummation of the reincorporation and receive payment
of
the fair value of their shares under Sections 92A.300 through 92A.500 of the
Nevada General Corporation Law.
The
following information is intended as a brief summary of the material provisions
of the statutory procedures you must follow in order to perfect your appraisal
rights. You are urged to read the full text of the Nevada dissenters’
rights statute, which is reprinted in its entirety and attached as Exhibit
D
to this
document. A person having a beneficial interest in shares of our common
stock that are held of record in the name of another person, such as a bank,
broker or other nominee, must act promptly to cause the record holder to follow
the steps summarized below, properly and in a timely manner, if such person
wishes to perfect any dissenters’ rights such person may have.
This
discussion and Exhibit
D
should
be reviewed carefully by you if you wish to exercise statutory dissenters’
rights or wish to preserve the right to do so, because failure to strictly
comply with any of the procedural requirements of the Nevada dissenters’ rights
statute may result in a termination or waiver of dissenters’ rights under the
Nevada dissenters’ rights statute.
Under
the
Nevada dissenters’ rights statute, you have the right to dissent from the
reincorporation and demand payment of the fair value of your shares of common
stock. If you elect to dissent, you must not consent to or approve the
proposed reincorporation. If you do consent to or approve the
reincorporation, you will not be entitled to dissenters’ rights. The “fair
value” of the shares as used in the Nevada dissenters’ rights statute is the
value of the shares immediately before the effectuation of the proposed
reincorporation, excluding any appreciation or depreciation in anticipation
of
the reincorporation unless exclusion would be inequitable.
Within
ten (10) days after the effective time of the reincorporation, we will give
written notice of the effective time of the reincorporation by certified mail
to
each stockholder entitled to assert dissenters’ rights. The notice will
also state where demand for payment must be sent and where share certificates
shall be deposited, among other information. Within the time period set
forth in the notice, which may not be less than thirty (30) days nor more than
sixty (60) days following the date notice is delivered, the dissenting
stockholder must make a written demand on us for payment of the fair value
of
his or her shares and deposit his or her share certificates in accordance with
the notice.
Within
thirty (30) days after the receipt of demand for the fair value of the
dissenters’ shares, we will pay to each dissenter who complied with the required
procedures the amount we estimate to be the fair value of the dissenters’
shares, plus accrued interest. Additionally, we will mail to each
dissenting stockholder certain financial statements, a statement as to how
fair
value was calculated, a statement as to how interest was calculated, a statement
of the dissenters’ right to demand payment of fair value under Nevada law, and a
copy of the relevant provisions of Nevada law.
A
dissenting stockholder, within thirty (30) days following receipt of payment
for
the shares, may send us a notice containing such stockholder’s own estimate of
fair value and accrued interest, and demand payment for that amount less the
amount received pursuant to our payment of fair value to such
stockholder.
If
a
demand for payment remains unsettled, we will petition the court to determine
fair value and accrued interest. If we fail to commence an action within
sixty (60) days following the receipt of the stockholder’s demand, we will pay
to the stockholder the amount demanded by the stockholder in the stockholder’s
notice containing the stockholder’s estimate of fair value and accrued
interest.
If
you
wish to seek dissenters’ rights, you are urged to review the applicable Nevada
statutes attached to this Information Statement as Exhibit
D.
INTEREST
OF CERTAIN PERSONS IN OR OPPOSITION
TO
MATTERS TO BE ACTED UPON
None
of
our officers, directors or any of their respective affiliates has any
substantial interest in the proposal to be acted upon.
FORWARD-LOOKING
STATEMENTS
This
Information Statement may contain certain “forward-looking” statements as such
term is defined by the Securities and Exchange Commission (the “SEC”) in its
rules, regulations and releases, which represent our expectations or beliefs,
including, but not limited to, statements concerning our operations, economic
performance, financial condition, growth and acquisition strategies,
investments, and future operational plans. For this purpose, any
statements contained herein that are not statements of historical fact may
be
deemed to be forward-looking statements. Without limiting the generality
of the foregoing, words such as “may,” “will,” “expect,” “believe,”
“anticipate,” “intend,” “could,” “estimate,” “might,” or “continue” or the
negative or other variations thereof or comparable terminology are intended
to
identify forward-looking statements. These statements, by their nature,
involve substantial risks and uncertainties, certain of which are beyond our
control, and actual results may differ materially depending on a variety of
important factors, including uncertainty related to acquisitions, governmental
regulation, managing and maintaining growth, volatility of stock prices and
any
other factors discussed in this and other of our filings with the
SEC.
INCORPORATION
OF FINANCIAL INFORMATION
Our
Annual Report on Form 10-KSB for the year ended December 31, 2005, as filed
with
the SEC (“Annual Report”), is incorporated in its entirety by reference into
this Information Statement. This Information Statement is
accompanied by a copy of the Annual Report. We will provide, without
charge, to each stockholder as of the record date, upon the written or oral
request of the stockholder and by first class mail or other equally prompt
means
within one business day of our receipt of such request, additional copies of
the
Annual Report that we have incorporated by reference into this Information
Statement, as well as all amendments thereto, including the financial statements
and schedules, as filed with the SEC. Stockholders should direct the
written request to SMI Products, Inc., a Nevada corporation, Inc., 122 Ocean
Park Blvd., Suite 307, Santa Monica, CA 90405, Attn: Robert L. B.
Diener.
As
the
requisite stockholder vote for each of the actions described in this Information
Statement was obtained upon the delivery of written consent from the holder
of a
majority of our outstanding shares of common stock, WE ARE NOT ASKING YOU FOR
A
PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY. This Information
Statement is for informational purposes only. Please read this Information
Statement carefully.
DELIVERY
OF DOCUMENTS TO SECURITY HOLDERS SHARING AN ADDRESS
One
Information Statement will be delivered to multiple stockholders sharing an
address unless we receive contrary instructions from one or more of the
stockholders sharing such address. Upon receipt of such notice, we will
undertake to promptly deliver a separate copy of this Information Statement
to
the stockholder at the shared address to which a single copy of the Information
Statement was delivered and provide instructions as to how the stockholder
can
notify us that the stockholder wishes to receive a separate copy of this
Information Statement or other communications to the stockholder in the
future. In the event a stockholder desires to provide us with such notice,
it may be given verbally by telephoning our offices at (310) 396-1691 or by
mail
to our address at SMI Products, Inc., a Nevada corporation, Inc., 122 Ocean
Park
Blvd., Suite 307, Santa Monica, CA 90405, Attn: Robert L. B.
Diener.
WHERE
YOU CAN FIND MORE INFORMATION
We
are
subject to the information and reporting requirements of the Exchange Act and
in
accordance with the Exchange Act, we file periodic reports, documents and other
information with the SEC relating to our business, financial statements and
other matters. These reports and other information may be inspected and
are available for copying at the offices of the SEC, 450 Fifth Street, NW,
Washington, DC 20549 or may be accessed on the SEC website at
www.sec.gov.
EXHIBIT
A
Reincorporation
Merger Agreement
AGREEMENT
AND PLAN OF MERGER
This
AGREEMENT AND PLAN OF MERGER (hereinafter called this “Agreement”),
dated
as of
,
200_, is entered into between SMI Products, Inc., a Nevada corporation, Inc.,
a
public company incorporated in the State of Nevada (the “Company”)
and
SMI Products Inc., a Delaware corporation and a wholly owned subsidiary of
the
Company (“SMI-Delaware”).
RECITALS
WHEREAS,
the board of directors of each of the Company and SMI-Delaware deems it
advisable, upon the terms and subject to the conditions herein stated, that
the
Company be merged with and into SMI-Delaware and that SMI-Delaware be the
surviving corporation (the “Reincorporation
Merger”);
and
WHEREAS,
the Company will submit this Agreement for approval by written consent of the
holders of shares of common stock, $0.001 par value, of the Company
(“common
stock”).
NOW,
THEREFORE, in consideration of the premises and of the agreements of the parties
hereto contained herein, the parties hereto agree as follows:
ARTICLE
I
THE
REINCORPORATION MERGER; EFFECTIVE TIME
1.1.
The
Reincorporation Merger.
Upon the terms and subject to the conditions set forth in this Agreement, at
the
Effective Time (as defined in Section 1.2), the Company shall be merged
with and into SMI-Delaware whereupon the separate existence of the Company
shall
cease. SMI-Delaware shall be the surviving corporation (sometimes
hereinafter referred to as the “Surviving
Corporation”)
in the
Reincorporation Merger and shall continue to be governed by the laws of the
State of Delaware. The Reincorporation Merger shall have the effects
specified in the General Corporation Law of the State of Delaware, as amended
(the “DGCL”),
and
in the General Corporation Law of the State of Nevada, as amended (the
“NGCL”),
and
the Surviving Corporation shall succeed, without other transfer, to all of
the
assets and property (whether real, personal or mixed), rights, privileges,
franchises, immunities and powers of the Company, and shall assume and be
subject to all of the duties, liabilities, obligations and restrictions of
every
kind and description of the Company, including, without limitation, all
outstanding indebtedness of the Company.
1.2.
Effective
Time.
Provided that the condition set forth in Section 5.1 has been fulfilled or
waived in accordance with this Agreement and that this Agreement has not been
terminated or abandoned pursuant to Section 6.1, on the date of the closing
of the Reincorporation Merger, the Company and SMI-Delaware shall cause Articles
of Merger to be executed and filed with the Secretary of State of Nevada (the
“Nevada
Articles
of Merger”)
and a
Certificate of Merger to be executed and filed with the Secretary of State
of
Delaware (the “Delaware
Certificate of Merger”).
The Reincorporation Merger shall become effective upon the date and time
specified in the Nevada Articles of Merger and the Delaware Certificate of
Merger (the “Effective
Time”).
ARTICLE
II
CHARTER
AND BYLAWS OF THE SURVIVING CORPORATION
2.1.
The
Certificate of Incorporation.
The certificate of incorporation of SMI-Delaware in effect at the Effective
Time
shall be the certificate of incorporation of the Surviving Corporation, until
amended in accordance with the provisions provided therein or applicable
law.
2.2.
The
Bylaws.
The bylaws of SMI-Delaware in effect at the Effective Time shall be the bylaws
of the Surviving Corporation, until amended in accordance with the provisions
provided therein or applicable law.
ARTICLE
III
OFFICERS
AND DIRECTORS OF THE SURVIVING CORPORATION
3.1.
Officers.
The officers of the Company at the Effective Time shall, from and after the
Effective Time, be the officers of the Surviving Corporation, until their
successors have been duly elected or appointed and qualified or until their
earlier death, resignation or removal.
3.2.
Directors.
The directors of the Company at the Effective Time shall, from and after the
Effective Time, be the directors of the Surviving Corporation, until their
successors have been duly elected or appointed and qualified or until their
earlier death, resignation or removal.
ARTICLE
IV
EFFECT
OF
MERGER ON CAPITAL STOCK
4.1.
Effect
of Merger on Capital Stock.
At
the Effective Time, as a result of the Reincorporation Merger and without any
action on the part of the Company, SMI-Delaware or the shareholders of the
Company:
(a)
Each ten (10) shares of common stock (other than shares (“Dissenting
Shares”)
that
are owned by shareholders (“Dissenting
Shareholders”)
exercising dissenters’ rights pursuant to the relevant provisions of Sections
92A.300 through 92A.500 of the NGCL) issued and outstanding immediately prior
to
the Effective Time shall be converted (without the surrender of stock
certificates or any other action) into one (1) fully paid and non-assessable
shares of common stock, par value $0.001, of SMI-Delaware (“Delaware
common stock”),
with
the same rights, powers and privileges as the shares so converted and all shares
of common stock shall be cancelled and retired and shall cease to
exist.
(b)
Each option, warrant or other security of the Company issued and outstanding
immediately prior to the Effective Time shall be (i) converted into and
shall be an identical security of SMI-Delaware, and (ii) in the case of
securities to acquire common stock, converted into the right to acquire on—tenth
Of a share (1/10) share of Delaware common stock for each share of common stock
that was acquirable pursuant to such option, warrant or other security. A
sufficient number of shares of Delaware common stock shall be reserved for
purposes of the exercise of such options, warrants or other securities for
each
share of common stock so reserved as of the Effective Time.
(c)
Each share of Delaware common stock owned by the Company shall no longer be
outstanding and shall be cancelled and retired and shall cease to
exist.
4.2.
Certificates.
At
and after the Effective Time, all of the outstanding certificates that
immediately prior thereto represented shares of common stock (other than
Dissenting Shares), options, warrants or other securities of the Company shall
be deemed for all purposes to evidence ownership of and to represent the shares
of the respective Delaware common stock, options, warrants or other securities
of SMI-Delaware, as the case may be, into which the shares of common stock,
options, warrants or other securities of the Company represented by such
certificates have been converted as herein provided and shall be so registered
on the books and records of the Surviving Corporation or its transfer
agent. The registered owner of any such outstanding certificate shall,
until such certificate shall have been surrendered for transfer or otherwise
accounted for to the Surviving Corporation or its transfer agent, have and
be
entitled to exercise any voting and other rights with respect to, and to receive
any dividends and other distributions upon, the shares of Delaware common stock,
options, warrants or other securities of SMI-Delaware, as the case may be,
evidenced by such outstanding certificate, as above provided.
4.3.
Dissenters’
Rights.
No
Dissenting Shareholder shall be entitled to shares of Delaware common stock
under this Article IV unless and until the holder thereof shall have failed
to perfect or shall have effectively withdrawn or lost such holder’s right to
dissent from the Reincorporation Merger under the NGCL, and any Dissenting
Shareholder shall be entitled to receive only the payment provided by the
relevant provisions of Sections 92A.300 through 92A.500 of the NGCL with respect
to Dissenting Shares owned by such Dissenting Shareholder. If any person
or entity who otherwise would be deemed a Dissenting Shareholder shall have
failed to properly perfect or shall have effectively withdrawn or lost the
right
to dissent with respect to any shares that would be Dissenting Shares but for
that failure to perfect or withdrawal or loss of the right to dissent, such
Dissenting Shares shall thereupon be treated as though such Dissenting Shares
had been converted into shares of Delaware common stock pursuant to
Section 4.1 hereof.
ARTICLE
V
CONDITION
5.1.
Condition
to Each Party’s Obligation to Effect the Reincorporation
Merger.
The respective obligation of each party hereto to effect the Reincorporation
Merger is subject to receipt prior to the Effective Time of the requisite
approval of this Agreement and the transactions contemplated hereby by the
holders of common stock pursuant to the NGCL and the Articles of Incorporation
of the Company.
ARTICLE
VI
TERMINATION
6.1.
Termination.
This Agreement may be terminated, and the Reincorporation Merger may be
abandoned, at any time prior to the Effective Time, whether before or after
approval of this Agreement by the shareholders of the Company, if the board
of
directors of the Company determines for any reason, in its sole judgment and
discretion, that the consummation of the Reincorporation Merger would be
inadvisable or not in the best interests of the Company and its
shareholders. In the event of the termination and abandonment of this
Agreement, this Agreement shall become null and void and have no effect, without
any liability on the part of either the Company or SMI-Delaware, or any of
their
respective shareholders, directors or officers.
ARTICLE
VII
MISCELLANEOUS
AND GENERAL
7.1.
Modification
or Amendment.
Subject to the provisions of applicable law, at any time prior to the Effective
Time, the parties hereto may modify or amend this Agreement; provided, however,
that an amendment made subsequent to the approval of this Agreement by the
holders of common stock shall not (i) alter or change the amount or kind of
shares and/or rights to be received in exchange for or on conversion of all
or
any of the shares or any class or series thereof of such corporation,
(ii) alter or change any provision of the certificate of incorporation of
the Surviving Corporation to be effected by the Reincorporation Merger, or
(iii) alter or change any of the terms or conditions of this Agreement if
such alteration or change would adversely affect the holders of any class or
series of capital stock of any of the parties hereto.
7.2.
Counterparts.
This Agreement may be executed in any number of counterparts, each such
counterpart being deemed to be an original instrument, and all such counterparts
shall together constitute the same agreement.
7.3.
GOVERNING
LAW.
THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE
INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
7.4.
Entire
Agreement.
This Agreement constitutes the entire agreement and supercedes all other prior
agreements, understandings, representations and warranties, both written and
oral, among the parties, with respect to the subject matter hereof.
7.5.
No
Third Party Beneficiaries.
This Agreement is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
7.6.
Severability.
The provisions of this Agreement shall be deemed severable and the invalidity
or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of this
Agreement, or the application thereof to any person or any circumstance, is
determined by any court or other authority of competent jurisdiction to be
invalid or unenforceable, (a) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision
and (b) the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
7.7.
Headings.
The headings herein are for convenience of reference only, do not constitute
part of this Agreement and shall not be deemed to limit or otherwise affect
any
of the provisions hereof.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
duly
authorized officers of the parties hereto as of the date first written
above.
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SMI
Products, Inc.
a
Nevada corporation
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By |
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SMI
Products, Inc.
a
Delaware corporation
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By |
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EXHIBIT
B
Certificate
of Incorporation
of
SMI
Products, Inc.
(a
Delaware corporation)
CERTIFICATE
OF INCORPORATION
OF
SMI
PRODUCTS, INC.
(A
Delaware Corporation)
I,
the
undersigned, for the purposes of incorporating and organizing a corporation
under the General Corporation Law of the State of Delaware (the “DGCL”), do
execute this Certificate of Incorporation and do hereby certify as
follows:
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FIRST.
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The
name of the corporation is SMI Products, Inc. (the
“Corporation”).
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SECOND.
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The
address of the Corporation’s registered office in the State of Delaware is
[insert], Dover, County of Kent, Delaware 19901. The name of its
registered agent at such address is [insert].
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THIRD.
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The
purpose of the Corporation is to engage in any lawful act or activity
for
which corporations may be organized under the DGCL.
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FOURTH.
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(a)
Authorized
Capital.
The total number of shares of all classes of stock which the Corporation shall
have authority to issue is 110,000,000, of which 100,000,000 shares, par value
of $0.001 shall be designated as Common Stock (“Common Stock”), and 10,000,000
shares, par value of $0.001, shall be designated as Preferred Stock (“Preferred
Stock”).).
(b)
Common
Stock.
(i)
Dividends.
Subject to the rights, if any, of the holders of Preferred Stock with respect
to
the payment of dividends and the requirements, if any, with respect to the
setting aside of sums as sinking funds or redemption or purchase accounts for
the benefit of such holders and subject to any other conditions that may be
fixed in or pursuant to the provisions of paragraph (c) of this Article Fourth,
the holders of Common Stock shall be entitled to receive such dividends, if
any,
as may be declared from time to time by the Board of Directors on the Common
Stock out of assets which are legally available therefor. Any such
dividends shall be divided among the holders of the Common Stock on a pro rata
basis..
(ii)
Liquidation.
In the event of any liquidation of the Corporation, after payment or provision
for payment of the debts and liabilities of the Corporation and after
distribution to the holders of Preferred Stock of the amounts fixed in or
pursuant to the provisions of paragraph (c) of this Article Fourth, the holders
of the Common Stock shall be entitled to receive all the remaining assets of
the
Corporation, tangible and intangible, of whatever kind available for
distribution to stockholders. Any such assets shall be divided among the
holders of Common Stock on a pro rata basis.
(iii)
Voting.
Except as may
otherwise be required by law and subject to the rights of the holders of
Preferred Stock fixed in or pursuant to paragraph (c) of this Article Fourth,
each holder of Common Stock shall have one vote for each share of Common Stock
held by such holder on each matter submitted to a vote of the
stockholders.
(c)
Preferred
Stock.
(i)
General.
Shares of the Preferred Stock may be issued from time to time in one or more
series, the shares of each series to have any designations and powers,
preferences and rights, and qualifications, limitations and restrictions
thereof, as are stated and expressed in any resolution or resolutions providing
for the issue of such series adopted by the Board of Directors as hereinafter
prescribed (a “Preferred Stock Designation”).
(ii)
Authority
of Board of Directors; Preferred Stock Designation.
Authority is hereby expressly granted to and vested in the Board of Directors
to
authorize the issuance of the Preferred Stock from time to time in one or more
series, and with respect to each series of the Preferred Stock, to fix and
state
by the resolution or resolutions from time to time adopted providing for the
issuance thereof the following:
(1)
whether or not the series is to have voting rights, full, special or limited,
or
is to be without voting rights, and whether or not such series is to be entitled
to vote as a separate class either alone or together with the holders of one
or
more other classes or series of stock;
(2)
the number of shares to constitute the series and the designations
thereof;
(3)
the preferences and relative, participating, optional, or other special rights,
if any, and the qualifications, limitations or restrictions thereof, if any,
with respect to any series;
(4)
whether or not the shares of any series shall be redeemable at the option of
the
Corporation or the holders thereof or upon the happening of any specified event,
and, if redeemable, the redemption price or prices (which may be payable in
the
form of cash, notes, securities or other property), and the time or times at
which and the terms and conditions upon which such shares shall be redeemable
and the manner of redemption;
(5)
whether or not the shares of a series shall be subject to the operation of
retirement or sinking funds to be applied to the purchase or redemption of
such
shares for retirement, and, if such retirement or sinking fund or funds are
to
be established, the periodic amount thereof, and the terms and provisions
relative to the operation thereof;
(6)
the dividend rate, whether dividends are payable in cash, stock of the
Corporation or other property, the conditions upon which and the times when
such
dividends are payable, the preference to or the relation to the payment of
dividends payable on any other class or classes or series of stock, whether
or
not such dividends shall be cumulative or noncumulative, and if cumulative,
the
date or dates from which such dividends shall accumulate;
(7)
the preferences, if any, and the amounts thereof which the holders of any series
thereof shall be entitled to receive upon the voluntary or involuntary
dissolution of, or upon any distribution of the assets of, the
Corporation;
(8)
whether or not the shares of any series, at the option of the Corporation or
the
holder thereof or upon the happening of any specified event, shall be
convertible into or exchangeable for the shares of any other class or classes
or
of any other series of the same or any other class or classes of stock,
securities or other property of the Corporation and the conversion price or
prices or ratio or ratios or the rate or rates at which such conversion or
exchange may be made, with such adjustments, if any, as shall be stated and
expressed or provided for in such resolution or resolutions; and
(9)
any other special rights and protective provisions with respect to any series
that the Board of Directors may deem advisable.
(iii)
Separate
Series; Increase or Decrease in Authorized Shares.
The shares of each series of Preferred Stock may vary from the shares of any
other series thereof in any or all of the foregoing respects and in any other
manner. The Board of Directors may increase the number of shares of
Preferred Stock designated for any existing series by a resolution adding to
such series authorized and unissued shares of Preferred Stock not designated
for
any other series. Unless otherwise provided in the Preferred Stock
Designation, the Board of Directors may decrease the number of shares of
Preferred Stock designated for any existing series by a resolution subtracting
from such series authorized and unissued shares of Preferred Stock designated
for such existing series, and the shares so subtracted shall become authorized,
unissued and undesignated shares of Preferred Stock.
(d) General.
(i)
Subject to the foregoing provisions of this Certificate of Incorporation, the
Corporation may issue shares of Preferred Stock and Common Stock from time
to
time for such consideration (not less than the par value thereof) as may be
fixed by the Board of Directors, which is expressly authorized to fix the same
in its absolute discretion. Shares so issued for which the consideration
shall have been paid or delivered to the Corporation shall be deemed fully
paid
stock and shall not be liable to any further call or assessment thereon, and
the
holders of such shares shall not be liable for any further payments in respect
of such shares.
(ii)
Subject to the provisions of this Certificate of Incorporation, the Corporation
shall have authority to create and issue rights and options entitling their
holders to purchase shares of the capital stock of the Corporation of any class
or series or other securities of the Corporation, and such rights and options
shall be evidenced by instrument approved by the Board of Directors. The
Board of Directors shall be empowered to set the exercise price, duration,
times
for exercise and other terms of such rights or options.
(iii)
No stockholder of the Corporation shall by reason of his or her holding shares
of any class of capital stock of the Corporation have any preemptive or
preferential right to acquire or subscribe for any additional, unissued or
treasury shares (whether now or hereafter acquired) of any class of capital
stock of the Corporation now or hereafter to be authorized, or any notes,
debentures, bonds or other securities convertible into or carrying any right,
option or warrant to subscribe for or acquire shares of any class of capital
stock of the Corporation now or hereafter to be authorized, whether or not
the
issuance of any such shares or such notes, debentures, bonds or other securities
would adversely affect the dividends or voting or other rights of that
stockholder.
(iv)
Cumulative voting of shares of any capital stock having voting rights shall
not
be permitted.
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FIFTH.
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The
name and mailing address of the incorporator is Robert L. B. Diener,
122
Ocean Park Blvd., Suite 307, Santa Monica, CA 90405.
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SIXTH.
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The
Board of Directors is authorized to adopt, amend or repeal bylaws
of the
Corporation (“Bylaws”), provided that the power of the Board of Directors
to adopt, amend or repeal Bylaws may be limited by an amendment to
the
Bylaws adopted by the holders of Common Stock that provides that
a
particular Bylaw or Bylaws may only be adopted, amended or repealed
by the
holders of Common Stock. The Corporation may, in its Bylaws or otherwise,
impose restrictions on the transfer of its
shares.
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SEVENTH.
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Elections
of directors need not be by written ballot except and to the extent
provided in the Bylaws.
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(a)
The number of directors of the Corporation shall be not less than one, the
exact
number of which and the method by which the directors shall be elected shall
be
as set forth in the Bylaws.
(b)
Any vacancies on the Board of Directors shall be filled by the holders of Common
Stock or by directors elected by the holders of Common Stock in the manner
provided for in the Bylaws.
(c)
Any director or the entire Board of Directors may be removed, with or without
cause, by the holders of a majority of the voting power of the outstanding
shares of the Common Stock.
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NINTH.
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A
director of the Corporation shall not be liable to the Corporation
or its
stockholders for monetary damages for breach of fiduciary duty as
a
director, except to the extent that such exemption from liability
or
limitation thereof is not permitted under the DGCL as currently in
effect
or as the same may hereafter be amended. If the DGCL is hereafter
amended
to eliminate or limit further the liability of a director, then,
in
addition to the elimination and limitation of liability provided
by the
preceding sentence, the liability of each director shall be eliminated
or
limited to the fullest extent permitted by the DGCL as so amended.
Any
amendment, modification or repeal of this Article Ninth shall be
prospective only and shall not adversely affect any right or protection
of
a director of the Corporation that exists at the time of such amendment,
modification or repeal.
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TENTH.
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The
Corporation shall indemnify and hold harmless, including the advancement
of expenses, to the fullest extent permitted by applicable law as
it
presently exists or may hereafter be amended, and in accordance with
the
Bylaws, any person who was or is made or is threatened to be made
a party
or is otherwise involved in any action, suit or proceeding, whether
civil,
criminal, administrative or investigative, by reason of the fact
that he
or she, or a person for whom he or she is the legal representative,
is or
was a director or officer of the Corporation or, while a director
or
officer of the Corporation, is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, enterprise
or
nonprofit entity, including service with respect to employee benefit
plans
maintained or sponsored by the Corporation (a “Covered Person”)
(including
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the
heirs, executors, administrators and estate of such Covered Person),
against all liability and loss suffered and expenses (including attorneys’
fees) reasonably incurred by such Covered Person. The Corporation
may, to
the extent authorized from time to time by the Board, grant rights
to
indemnification and to the advancement of expenses to any employee
or
agent of the Corporation to the fullest extent of the provisions
of this
Article Tenth with respect to the indemnification and advancement
of
expenses of directors and officers of the Corporation. Without limiting
the generality or the effect of the foregoing, the Corporation may
enter
into one or more agreements with any person that provide for
indemnification greater or different than that provided in this Article
Tenth. No amendment or repeal of this Article Tenth shall adversely
affect
any right or protection existing hereunder or pursuant hereto immediately
prior to such amendment or repeal.
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IN WITNESS WHEREOF, I have signed this Certificate of Incorporation this __
day
of _______________, 200_.
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Robert
L. B. Diener
Incorporator
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EXHIBIT
C
Bylaws
of
SMI
Products, Inc.
(a
Delaware corporation)
BYLAWS
OF
SMI
PRODUCTS, INC.
(A
Delaware Corporation)
ARTICLE
I
STOCKHOLDERS
Section 1.1.
Annual
Meetings.
If
required by applicable law, an annual meeting of the holders of Common Stock
shall be held each year during the month of February or such other month as
may
be designated by the board of directors (the “Board of Directors”) on such date
and at such time and place, if any, either within or outside the State of
Delaware, as may be designated by the Board of Directors from time to
time. At such meeting, the holders of the Common Stock shall elect the
Board of Directors and shall transact such other business as may be brought
properly before the meeting. Holders of non-voting stock may be invited,
and to the extent there is a matter on which such holders are entitled to vote,
such holders shall be invited to attend the annual meeting, but shall not vote
except with respect to matters on which their vote is required by the General
Corporation Law of the State of Delaware, as it may be amended (the “DGCL”) or
the certificate of incorporation of the Corporation, as it may be amended (the
“Certificate of Incorporation”).
Section 1.2.
Special
Meetings.
1.2.1.
Special meetings of stockholders entitled to vote at such meeting may be called
at any time by the Chairman of the Board of Directors, the President (if he
is
also a member of the Board of Directors) or the Board of Directors, to be held
at such date, time and place, if any, either within or outside the State of
Delaware as may be determined by such person or persons calling the meeting
and
stated in the notice of the meeting. A special meeting shall be called by the
President or the Secretary upon one or more written demands (which shall state
the purpose or purposes therefore) signed and dated by the holders of shares
representing not less than ten percent of all votes entitled to be cast on
any
issue(s) that may be properly proposed to be considered at the special meeting.
If no place is designated in the notice, the place of the meeting shall be
the
principal office of the Corporation.
1.2.2.
Business transacted at any special meeting of stockholders shall be limited
to
the purpose or purposes stated in the notice of such meeting.
Section 1.3.
Notice
of Meetings.
Whenever stockholders are required or permitted to take any action at a meeting,
a notice of the meeting stating the place, if any, date and hour of the meeting,
and the means of remote communications, if any, by which stockholders and proxy
holders may be deemed to be present in person and vote at such meeting and,
in
the case of a special meeting, the purpose or purposes for which the meeting
is
called, shall be given to each stockholder entitled to vote at such meeting.
Unless otherwise provided by law, the Certificate of Incorporation or these
Bylaws, the notice of any meeting shall be given not less than ten nor more
than
sixty days before the date of the meeting to each stockholder entitled to vote
at such meeting. If mailed, such notice shall be deemed to be given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at such stockholder’s address as it appears on the records of the
Corporation.
Section 1.4.
Adjournments.
Any meeting of stockholders, annual or special, may be adjourned from time
to
time, to reconvene at the same or some other place, and notice need not be
given
of any such adjourned meeting if the time, place thereof, if any, and the means
of remote communications, if any, by which stockholders and proxy holders may
be
deemed to be present in person and vote at such adjourned meeting are announced
at the meeting at which the adjournment is taken. At the adjourned meeting
the
Corporation may transact any business which might have been transacted at the
original meeting. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, notice
of
the adjourned meeting shall be given to each stockholder of record entitled
to
vote at the meeting.
Section 1.5.
Quorum.
At
each meeting of stockholders, except where otherwise provided by law or the
Certificate of Incorporation or these Bylaws, the holders of a majority in
voting power of the outstanding shares of stock entitled to vote on a matter
at
the meeting, present in person or represented by proxy, shall constitute a
quorum. Shares entitled to vote as a separate class or series may take action
on
a matter at a meeting only if a quorum of those shares is present. For purposes
of the foregoing, where a separate vote by class or classes or a series or
multiple series is required for any matter, the holders of a majority in voting
power of the outstanding shares of such class or classes or a series or multiple
series, present in person or represented by proxy, shall constitute a quorum
to
take action with respect to that vote on that matter. In the absence of a quorum
of the holders of any class or series of stock entitled to vote on a matter,
the
holders of such class or series so present or represented may, by majority
vote,
adjourn the meeting of such class or series with respect to that matter from
time to time in the manner provided by Section 1.4 of these Bylaws until a
quorum of such class or series shall be so present or represented. Shares of
its
own capital stock belonging on the record date for the meeting to the
Corporation or to another corporation, if a majority of the shares entitled
to
vote in the election of directors of such other corporation is held, directly
or
indirectly, by the Corporation, shall neither be entitled to vote nor be counted
for quorum purposes; provided, however, that the foregoing shall not limit
the
right of the Corporation or any subsidiary of the Corporation to vote stock,
including but not limited to its own stock, held by it in a fiduciary
capacity.
Section 1.6.
Organization.
1.6.1.
The chairman of the annual or any special meeting of the stockholders shall
be
the Chairman of the Board of Directors, or in the absence of the Chairman,
any
person designated by the Board of Directors. The Secretary, or in the absence
of
the Secretary, an Assistant Secretary, shall act as the secretary of the
meeting, but in the absence of the Secretary and any Assistant Secretary, the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
1.6.2.
The order of business at each such meeting shall be as determined by the
chairman of the meeting. The chairman of the meeting shall have the right and
authority to prescribe such rules, regulations and procedures and to do all
such
acts and things as are necessary or desirable for the proper conduct of the
meeting, including, without limitation, the adjournment of any meeting, the
establishment of procedures for the maintenance of order and safety, limitations
on the time allotted to questions or comments on the affairs of the Corporation,
restrictions on entry to such meeting after the time prescribed for the
commencement thereof and the opening and closing of the voting polls. The
chairman of the meeting shall have absolute authority over matters of procedure
and there shall be no appeal from the ruling of the chairman.
1.6.3.
If disorder shall arise that prevents continuation of the legitimate business
of
the meeting, the chairman may announce the adjournment of the meeting and quit
the chair and upon the chairman so doing the meeting is immediately
adjourned.
1.6.4.
The chairman may ask or require that anyone who is not a bona fide stockholder
or proxyholder leave the meeting.
Section 1.7.
Inspectors.
Prior to any meeting of stockholders, the Board of Directors may, and shall
if
required by law, appoint one or more inspectors to act at such meeting and
make
a written report thereof and may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate is able to act at the meeting of stockholders, the person presiding
at
the meeting may, and shall if required by law, appoint one or more inspectors
to
act at the meeting. The inspectors need not be stockholders of the Corporation,
and any director or officer of the Corporation may be an inspector on any matter
other than a vote for or against such director’s or officer’s election to any
position with the Corporation or on any other matter in which such officer
or
director may be directly interested. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall ascertain the number of shares
outstanding and the voting power of each, determine the shares represented
at
the meeting and the validity of proxies and ballots, count all votes and
ballots, determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors and
certify their determination of the number of shares represented at the meeting
and their count of all votes and ballots. The inspectors may appoint or retain
other persons to assist them in the performance of their duties. The date and
time of the opening and closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the meeting. No
ballot, proxy or vote, nor any revocation thereof or change thereto, shall
be
accepted by the inspectors after the closing of the polls. In determining the
validity and counting of proxies and ballots cast at any meeting of stockholders
of the Corporation, the inspectors may consider such information as is permitted
by applicable law.
Section 1.8.
Voting;
Proxies; Nominations; Stockholder Proposals.
1.8.1.
Unless otherwise provided in the Certificate of Incorporation, each stockholder
entitled to vote at any meeting of stockholders shall be entitled to one vote
for each share of stock held by such stockholder which has voting power upon
the
matter in question. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for such
stockholder by proxy, but no such proxy shall be voted or acted upon after
three
years from its date, unless the proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and
if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power, regardless of whether the interest with which it is
coupled is an interest in the stock itself or an interest in the Corporation
generally. A stockholder may revoke any proxy which is not irrevocable by
attending the meeting and voting in person or by filing an instrument in writing
revoking the proxy or another duly executed proxy bearing a later date with
the
Secretary of the Corporation. Voting at meetings of stockholders need not be
by
written ballot unless the holders of a majority of the outstanding shares of
all
classes of stock entitled to vote thereon present in person or represented
by
proxy at such meeting shall so determine. Except where applicable law, the
Certificate of Incorporation or these Bylaws require a different vote, if a
quorum exists, action on a matter other than the election of directors is
approved if the votes cast favoring the action exceed the votes cast opposing
the action. In an election of directors, a plurality of the votes of the shares
present in person or represented by proxy at a meeting and entitled to vote
for
directors is required in order to elect a director.
1.8.2.
The voting rights of shares of Common Stock shall only be as required by
applicable law or the Certificate of Incorporation.
1.8.3.
Nomination of persons to stand for election to the Board of Directors at any
annual or special stockholders meeting may be made by the holders of the
Corporation’s Common Stock only if written notice of such stockholder’s intent
to make such nomination has been given to the Secretary of the Company not
later
than 30 days prior to the meeting.
1.8.4.
At any meeting of stockholders, a resolution or motion shall be considered
for
vote only if the proposal is brought properly before the meeting, which shall
be
determined by the chairman of the meeting in accordance with the following
provisions:
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1.8.4.1
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Notice
required by these Bylaws and by all applicable federal or state statutes
or regulations shall have been given to, or waived by, all stockholders
entitled to vote on such proposal. In the event notice periods of
different lengths apply to the same proposed action under different
laws
or regulations, appropriate notice shall be deemed given if there
is
compliance with the greater of all applicable notice
requirements.
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1.8.4.2
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Proposals
may be made by the Board of Directors as to matters affecting holders
of
any class of stock issued by the Corporation. Proposals may also
be made
by the holders of shares of Common Stock.
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1.8.4.3
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Any
proposal made by the Board of Directors or the holders of shares
of Common
Stock may be made at any time prior to or at the meeting if only
the
holders of Common Stock are entitled to vote thereon.
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1.8.4.4
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Holders
of Common Stock may only make a proposal with respect to which such
holders are entitled to vote. Any proposal on which holders of Common
Stock are entitled to vote and concerning which proxies may be solicited
by the proponent or by management shall be filed with the Secretary
by
such dates as may be required by the federal securities proxy rules
promulgated by the Securities and Exchange Commission.
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1.8.4.5
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Any
stockholder who gives notice of any stockholder proposal shall deliver
therewith the text of the proposal to be presented and a brief written
statement of the reasons why such stockholder favors the proposal
and
setting forth such stockholder’s name and address, the number and class of
all shares of each class of stock of the Corporation beneficially
owned by
such stockholder and any financial interest of such stockholder in
the
proposal (other than as a
stockholder).
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Section 1.9.
Fixing
Date for Determination of Stockholders of Record.
1.9.1.
In order that the Corporation may determine the stockholders entitled to notice
of or to vote at any meeting of stockholders or any adjournment thereof, the
Board of Directors may fix a record date, which record date shall not be more
than sixty nor less than ten days before the date of such meeting. If no record
date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall
be at the close of business on the day next preceding the day on which notice
is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board
of
Directors may fix a new record date for the adjourned meeting.
1.9.2.
In order that the Corporation may determine the stockholders entitled to consent
to corporate action in writing without a meeting, the Board of Directors may
fix
a record date, which record date shall not be more than ten days after the
date
upon which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors
is
required by law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in the State of Delaware,
its
principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation’s registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record
date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall
be at
the close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
1.9.3.
In order that the Corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or
the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty days prior to such action.
If
no record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the Board
of
Directors adopts the resolution relating thereto.
Section 1.10.
List
of Stockholders Entitled to Vote.
The officer who has charge of the stock ledger shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination
of
any stockholder, for any purpose germane to the meeting at least ten
(10) days prior to the meeting (i) on a reasonably accessible
electronic network, provided that the information required to gain access to
such list is provided with the notice of meeting or (ii) during ordinary
business hours at the principal place of business of the Corporation. The list
of stockholders must also be open to examination at the meeting as required
by
applicable law. Except as otherwise provided by law (a) the stock ledger
shall be the only evidence as to who are the stockholders entitled by this
Section 1.10 to examine the list of stockholders required by this
Section 1.10 or to vote in person or by proxy at any meeting of
stockholders and (b) failure to prepare or make available the list of
stockholders shall not affect the validity of actions taken at the
meeting.
Section 1.11.
Consent
of Stockholders in Lieu of Meeting.
Unless otherwise restricted by the Certificate of Incorporation, any action
required or permitted to be taken at any annual or special meeting of the
stockholders may be taken without a meeting, without prior notice and without
a
vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted
and shall be delivered to the Corporation by delivery to its registered office
in the State of Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which minutes of
proceedings of stockholders are recorded. Delivery made to the Corporation’s
registered office shall be by hand or by certified or registered mail, return
receipt requested. Every written consent shall bear the date of signature of
each stockholder who signs the consent and no written consent shall be effective
unless, within sixty days of the earliest dated consent delivered to the
Corporation in the manner provided by the previous sentence, written consents
signed by a sufficient number of holders to take action are delivered to the
Corporation in the manner provided by the previous sentence. Prompt notice
of
the taking of the corporate action without a meeting by less than unanimous
written consent shall, to the extent required by law, be given to those
stockholders who have not consented in writing and who, if the action had been
taken at a meeting, would have been entitled to notice of the meeting if the
record date for such meeting had been the date that written consents signed
by a
sufficient number of holders to take the action were delivered to the
Corporation.
Section 1.12.
Meeting
by Remote Communication.
If
authorized by the Board of Directors in its sole discretion, and subject to
such
guidelines and procedures as the Board of Directors may adopt, stockholders
and
proxyholders not physically present at a meeting of stockholders may, by means
of remote communication: (a) participate in a meeting of stockholders; and
(b) be deemed present in person and vote at a meeting of stockholders
whether such meeting is to be held at a designated place or solely by means
of
remote communication, provided that (i) the Corporation shall implement
reasonable measures to verify that each person deemed present and permitted
to
vote at the meeting by means of remote communication is a stockholder or
proxyholder, (ii) the Corporation shall implement reasonable measures to
provide such stockholders and proxyholders a reasonable opportunity to
participate in the meeting and to vote on matters submitted to the stockholders,
including an opportunity to read or hear the proceedings of the meeting
substantially concurrently with such proceedings, and (iii) if any
stockholder or proxyholder votes or takes other action at the meeting by means
of remote communication, a record of such vote or other action shall be
maintained by the Corporation.
ARTICLE
II
BOARD
OF
DIRECTORS
Section 2.1.
Powers;
Number; Qualifications.
The business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors, except as may be otherwise provided by
law
or in the Certificate of Incorporation. The Board of Directors shall consist
of
not less than one member, the number thereof to be determined from time to
time
by resolution of the Board of Directors. Directors must be natural persons
at
least eighteen years of age but need not be stockholders of the
Corporation.
Section 2.2.
Election;
Term of Office; Resignation; Removal; Newly Created Directorships; Vacancies;
Director Emeritus.
2.2.1.
Election;
Term of Office.
The Board of Directors shall be elected at each annual meeting of stockholders
by the holders of the Common Stock. Each director shall hold office until his
or
her successor is elected and qualified or until his or her death, earlier
resignation, removal or disqualification.
2.2.2.
Resignation.
Any director may resign at any time upon notice to the Board of Directors or
to
the President or the Secretary of the Corporation. Such resignation shall take
effect at the time specified therein, and unless otherwise specified therein,
no
acceptance of such resignation shall be necessary to make it
effective.
2.2.3.
Removal.
Any director or the entire Board of Directors may be removed, with or without
cause, by holders of a majority of the voting power of the outstanding shares
of
the Common Stock. A vacancy on the Board of Directors caused by any such removal
may be filled by a majority of the remaining directors at any time before the
end of the unexpired term.
2.2.4.
Newly
Created Directorships; Vacancies.
Unless otherwise provided in the Certificate of Incorporation or these Bylaws,
newly created directorships resulting from any increase in the authorized number
of directors between annual meetings shall be filled by the affirmative vote
of
a majority of the remaining members of the Board of Directors even if the
remaining directors constitute less than a quorum. A director elected to fill
a
vacancy shall be elected for the unexpired term of such director’s predecessor
in office.
Section 2.3.
Annual
and Regular Meetings.
The Board of Directors shall hold its annual meeting without notice on the
same
day and the same place as, but just following, the annual meeting of the holders
of Common Stock, or at such other date, time and place as may be determined
by
the Board of Directors. Regular meetings of the Board of Directors shall be
held
without notice at such dates, times and places as may be determined by the
Board
of Directors by resolution.
Section 2.4.
Special
Meetings; Notice.
2.4.1.
Special meetings of the Board of Directors may be held, with proper notice,
upon
the call of the Chairman of the Board of Directors or by at least two members
of
the Board of Directors at such time and place as specified in the
notice.
2.4.2.
Notice of the date, time and place of each special meeting of the Board of
Directors shall be given to each director at least 24 hours prior to such
meeting. The notice of a special meeting of the Board of Directors need not
state the purposes of the meeting. Notice to each director of any special
meeting may be given in person; by telephone, telegraph, teletype,
electronically transmitted facsimile, or other means of wire or electronic
transmission; or by mail or private carrier. Oral notice to a director of any
special meeting is effective when communicated. Written notice to a director
of
any special meeting is effective at the earliest of: (i) the date received;
(ii) five days after it is mailed; or (iii) the date shown on the
return receipt if mailed by registered or certified mail, return receipt
requested, if the return receipt is signed by or on behalf of the director
to
whom the notice is addressed.
Section 2.5.
Participation
in Meetings by Conference Telephone Permitted.
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws,
directors or members of any committee designated by the Board of Directors
may
participate in a meeting of the Board of Directors or of such committee, as
the
case may be, by means of conference telephone or other communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this Bylaw shall constitute presence
in person at such meeting.
Section 2.6.
Quorum;
Vote Required for Action.
At
all meetings of the Board of Directors one-third of the directors then in office
shall constitute a quorum for the transaction of business at such meeting.
The
vote of a majority of the directors present at a meeting at which a quorum
is
present shall be the act of the Board of Directors. In case at any meeting
of
the Board of Directors a quorum shall not be present, a majority of the
directors present may, without notice other than announcement at the meeting,
adjourn the meeting from time to time until a quorum can be
obtained.
Section 2.7.
Organization.
The Board of Directors shall elect a Chairman of the Board of Directors from
among its members. If the Board of Directors deems it necessary, it may elect
a
Vice-Chairman of the Board of Directors from among its members to perform the
duties of the Chairman of the Board of Directors in such chairman’s absence and
such other duties as the Board of Directors may assign. The Chairman of the
Board of Directors or, in his absence, the Vice-Chairman of the Board of
Directors, or in his absence, any director chosen by a majority of the directors
present, shall act as chairperson of the meetings of the Board of Directors.
The
Secretary, any Assistant Secretary, or any other person appointed by the
chairperson shall act as secretary of each meeting of the Board of
Directors.
Section 2.8.
Action
by Directors Without a Meeting.
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws,
any action required or permitted to be taken at any meeting of the Board of
Directors, or of any committee thereof, may be taken without a meeting if all
members of the Board of Directors or of such committee, as the case may be,
consent thereto in writing or by electronic transmission and the writing or
writings or electronic transmission are filed with the minutes of proceedings
of
the Board of Directors or committee. Such filings shall be in paper form if
the
minutes are maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form.
Section 2.9.
Compensation
of Directors.
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws,
the Board of Directors shall determine and fix the compensation, if any, and
the
reimbursement of expenses which shall be allowed and paid to the directors.
Nothing herein contained shall be construed to preclude any director from
serving the Corporation in any other capacity or any of its subsidiaries in
any
other capacity and receiving proper compensation therefore.
ARTICLE
III
COMMITTEES
Section 3.1.
Committees.
The Board of Directors may, by a vote of the majority of the directors then
in
office, designate one or more committees, each committee to consist of one
or
more of the directors of the Corporation. The Board of Directors may designate
one or more directors as alternate members of any committee, who may replace
any
absent or disqualified member at any meeting of the committee. In the absence
or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such
member or members constitute a quorum, may unanimously appoint another member
of
the Board of Directors to act at the meeting in the place of any such absent
or
disqualified member. Any such committee, to the extent permitted by law and
provided in the resolution of the Board of Directors or in these Bylaws, shall
have and may exercise all the powers and authority of the Board of Directors
in
the management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require
it.
Section 3.2.
Committee
Rules.
Unless the Board of Directors otherwise provides, each committee designated
by
the Board of Directors may adopt, amend and repeal rules for the conduct of
its
business. In the absence of a provision by the Board of Directors or a provision
in the rules of such committee to the contrary, a majority of the entire
authorized number of members of such committee shall constitute a quorum for
the
transaction of business, the vote of a majority of the members present at a
meeting at the time of such vote if a quorum is then present shall be the act
of
such committee, and in other respects each committee shall conduct its business
in the same manner as the Board of Directors conducts its business pursuant
to
Article II of these Bylaws. Each committee shall prepare minutes of its
meetings which shall be delivered to the Secretary of the Corporation for
inclusion in the Corporation’s records.
ARTICLE
IV
OFFICERS
Section 4.1.
Officers;
Election.
The Board of Directors shall, annually or at such times as the Board of
Directors may designate, appoint a President, a Secretary and a Treasurer,
and
elect from among its members a Chairman. The Board of Directors may also appoint
one or more Vice Presidents, one or more Assistant Vice Presidents, one or
more
Assistant Secretaries, and one or more Assistant Treasurers and such other
officers as the Board of Directors may deem desirable or appropriate and may
give any of them such further designations or alternate titles as it considers
desirable. The Board of Directors may delegate, by specific resolution, to
an
officer the power to appoint other specified officers or assistant officers.
Any
number of offices may be held by the same person unless the Certificate of
Incorporation or these Bylaws provide otherwise. Each officer shall be a natural
person who is eighteen years of age or older.
Section 4.2.
Term
of Office; Resignation; Removal; Vacancies.
Unless otherwise provided in the resolution of the Board of Directors appointing
any officer, each officer shall hold office until the next annual meeting of
the
Board of Directors at which his or her successor is appointed and qualified
or
until his or her earlier resignation or removal. Any officer may resign at
any
time upon notice given in writing or by electronic transmission to the
Corporation. Such resignation shall take effect at the time specified therein,
and unless otherwise specified therein no acceptance of such resignation shall
be necessary to make it effective. The Board of Directors may remove any officer
with or without cause at any time. Any such removal shall be without prejudice
to the contractual rights of such officer, if any, with the Corporation, but
the
appointment of an officer shall not of itself create contractual rights. The
Board of Directors may also delegate to an officer the power to remove other
specified officers or assistant officers. Any vacancy occurring in any office
of
the Corporation by death, resignation, removal or otherwise may be filled by
the
Board of Directors. An officer appointed to fill a vacancy shall serve for
the
unexpired term of such officer’s predecessor, or until such officer’s earlier
death, resignation or removal.
Section 4.3.
Temporary
Delegation of Duties.
In
the case of the absence of any officer, or his inability to perform his duties,
or for any other reason deemed sufficient by the Board of Directors, the Board
of Directors may delegate the powers and duties of such officer to any other
officer or to any director temporarily, provided that a majority of the
directors then in office concur and that no such delegation shall result in
giving to the same person conflicting duties.
Section 4.4.
Chairman.
The Chairman of the Board of Directors shall preside at all meetings of the
Board of Directors and of the stockholders at which he or she shall be present
and shall have and may exercise such powers as may, from time to time, be
assigned to him or her by the Board of Directors or as may be provided by
law.
Section 4.5.
Chief
Executive Officer.
The Chief Executive Officer (the “CEO”), if one is appointed by the Board of
Directors, shall perform all duties customarily delegated to the chief executive
officer of a corporation and such other duties as may from time to time be
assigned to the CEO by the Board of Directors and these Bylaws.
Section 4.6.
President.
If
there
is no separate CEO, the President shall be the CEO of the Corporation;
otherwise, the President shall be responsible to the CEO for the day-to-day
operations of the Corporation. The President shall have general and active
management of the business of the Corporation; shall see that all orders and
resolutions of the Board of Directors are carried into effect; and shall perform
all duties as may from time to time be assigned by the Board of Directors or
the
CEO.
Section 4.7.
Vice
Presidents.
The Vice President or Vice Presidents shall have such powers and shall perform
such duties as may, from time to time, be assigned to him or her or them by
the
Board of Directors, the CEO or the President or as may be provided by
law.
Section 4.8.
Secretary.
The Secretary shall have the duty to record the proceedings of the meetings
of
the stockholders, the Board of Directors and any committees thereof in a book
to
be kept for that purpose, shall authenticate records of the Corporation, shall
see that all notices are duly given in accordance with the provisions of these
Bylaws or as required by law, shall be custodian of the records of the
Corporation, may affix the corporate seal to any document the execution of
which, on behalf of the Corporation, is duly authorized, and when so affixed
may
attest the same, and, in general, shall perform all duties incident to the
office of secretary of a corporation and such other duties as may, from time
to
time, be assigned to him or her by the Board of Directors, the CEO or the
President or as may be provided by law.
Section 4.9.
Treasurer.
The Treasurer shall have charge of and be responsible for all funds, securities,
receipts and disbursements of the Corporation and shall deposit or cause to
be
deposited, in the name of the Corporation, all moneys or other valuable effects
in such banks, trust companies or other depositories as shall, from time to
time, be selected by or under authority of the Board of Directors. If required
by the Board of Directors, the Treasurer shall give a bond for the faithful
discharge of his or her duties, with such surety or sureties as the Board of
Directors may determine. The Treasurer shall keep or cause to be kept full
and
accurate records of all receipts and disbursements in books of the Corporation,
shall maintain books of account and records and exhibit such books of account
and records to any of the directors of the Corporation at any reasonable time,
shall receive and give receipts for monies due and payable to the Corporation
from any source whatsoever, shall render to the CEO, the President and to the
Board of Directors, whenever requested, an account of the financial condition
of
the Corporation, and, if called to do so, make a full financial report at the
annual meeting of the stockholders, and, in general, shall perform all the
duties incident to the office of treasurer of a corporation and such other
duties as may, from time to time, be assigned to him or her by the Board of
Directors, the CEO or the President or as may be provided by law.
Section 4.10.
Assistant
Secretaries and Assistant Treasurers.
The Assistant Secretaries and Assistant Treasurers, if any, shall perform such
duties as shall be assigned to them by the Secretary or the Treasurer,
respectively, or by the President, the CEO or the Board of Directors. In the
absence or at the request of the Secretary or the Treasurer, the Assistant
Secretaries or Assistant Treasurers, respectively, shall perform the duties
and
exercise the powers of the Secretary or Treasurer, as the case may
be.
Section 4.11.
Other
Officers.
The other officers, if any, of the Corporation shall have such powers and duties
in the management of the Corporation as shall be stated in a resolution of
the
Board of Directors which is not inconsistent with these Bylaws and, to the
extent not so stated, as generally pertain to their respective offices, subject
to the control of the Board of Directors.
Section 4.12.
Compensation.
The salaries and other compensation of the officers shall be fixed or authorized
from time to time by the Board of Directors. No officer shall be prevented
from
receiving such salary or other compensation by reason of the fact that he is
also a director of the Corporation.
ARTICLE
V
STOCK
Section 5.1.
Stock
Certificates and Uncertificated Shares.
The shares of stock in the Corporation shall be represented by certificates,
provided that the Board of Directors may provide by resolution or resolutions
that some or all of any or all classes or series of the Corporation’s stock
shall be uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate theretofore issued until such certificate is
surrendered to the Corporation. Notwithstanding the adoption of such a
resolution by the Board of Directors, every holder of stock represented by
certificates, and upon request every holder of uncertificated shares, shall
be
entitled to have a certificate signed by or in the name of the Corporation
by
the Chairman of the Board of Directors, if any, or the President or a Vice
President, and by the Treasurer or an Assistant Treasurer, or the Secretary
or
an Assistant Secretary, of the Corporation, representing the number of shares
of
stock registered in certificate form owned by such holder. Any and all the
signatures on the certificate may be by a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has
been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if such person were such officer, transfer
agent or registrar at the date of issue.
Section 5.2.
Lost,
Stolen or Destroyed Stock Certificates; Issuance of New
Certificates.
The Corporation may issue a new certificate of stock or uncertificated shares
in
the place of any certificate theretofore issued by it, alleged to have been
lost, stolen or destroyed, and the Corporation may require the owner of the
lost, stolen or destroyed certificate, or such owner’s legal representative, to
give the Corporation a bond in such form and amount (not exceeding twice the
value of the stock represented by such certificate) and with such surety and
sureties as the secretary may require in order to indemnify it against any
claim
that may be made against it on account of the alleged loss, theft or destruction
of any such certificate or the issuance of such new certificate or
uncertificated shares.
Section 5.3.
Transfer
of Stock.
Subject to any transfer restrictions set forth or referred to on the stock
certificate or of which the Corporation otherwise has notice, shares of the
Corporation shall be transferable on the books of the Corporation upon
presentation to the Corporation or to the Corporation’s transfer agent of a
stock certificate signed by, or accompanied by an executed assignment form,
the
holder of record thereof, his duly authorized legal representative, or other
appropriate person as permitted by the DGCL. The Corporation may require that
any transfer of shares be accompanied by proper evidence reasonably satisfactory
to the Corporation or to the Corporation’s transfer agent that such endorsement
is genuine and effective. Upon presentation of shares for transfer as provided
above, the payment of all taxes, if any, therefor, and the satisfaction of
any
other requirement of law, including inquiry into and discharge of any adverse
claims of which the Corporation has notice, the Corporation shall issue a new
certificate to the person entitled thereto and cancel the old certificate.
Every
transfer of stock shall be entered on the stock books of the Corporation to
accurately reflect the record ownership of each share. The Board of Directors
also may make such additional rules and regulations as it may deem expedient
concerning the issue, transfer, and registration of certificates for shares
of
the capital stock of the Corporation.
Section 5.4.
Preferred
Stock.
Shares of preferred stock shall be issued by the Corporation only after filing
a
Preferred Stock Designation described in paragraph (c) of the Fourth
Article of the Corporation’s Certificate of Incorporation with the Delaware
Secretary of State and satisfying all other requirements of the Certificate
of
Incorporation and the DGCL with respect thereto.
Section 5.5.
Holders
of Record.
The Corporation shall be entitled to treat the holder of record of any share
of
stock as the holder in fact thereof and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such share on the
part
of any other person, whether or not it shall have express or other notice
thereof, except as may be allowed by these Bylaws or required by the laws of
Delaware.
ARTICLE
VI
EXECUTION
OF INSTRUMENTS; CHECKS AND ENDORSEMENTS; DEPOSITS; ETC.
Section 6.1.
Execution
of Instruments.
Except as otherwise provided by the Board of Directors, the Chairman, the CEO,
the President, any Vice President, the Treasurer or the Secretary shall have
the
power to execute and deliver on behalf of and in the name of the Corporation
any
instrument requiring the signature of an officer of the Corporation. Unless
authorized to do so by these Bylaws or by the Board of Directors, no assistant
officer, agent or employee shall have any power or authority to bind the
Corporation in any way, to pledge its credit or to render it liable pecuniarily
for any purpose or in any amount.
Section 6.2.
Checks
and Endorsements.
All checks, drafts or other orders for the payment of money, obligations, notes
or other evidences of indebtedness issued in the name of the Corporation and
other such instruments shall be signed or endorsed for the Corporation by such
officers or agents of the Corporation as shall from time to time be determined
by resolution of the Board of Directors, which resolution may provide for the
use of facsimile signatures.
Section 6.3.
Deposits.
All funds of the Corporation not otherwise employed shall be deposited from
time
to time to the Corporation’s credit in such banks or other depositories as shall
from time to time be determined by resolution of the Board of Directors, which
resolution may specify the officers or agents of the Corporation who shall
have
the power, and the manner in which such power shall be exercised, to make such
deposits and to endorse, assign and deliver for collection and deposit checks,
drafts and other orders for the payment of money payable to the Corporation
or
its order.
Section 6.4.
Voting
of Securities and Other Entities.
Unless otherwise provided by resolution of the Board of Directors, the Chairman,
Chief Executive Officer, or the President, or any officer designated in writing
by any of them, is authorized to attend in person, or may execute written
instruments appointing a proxy or proxies to represent the Corporation, at
all
meetings of any corporation, partnership, limited liability company,
association, joint venture, or other entity in which the Corporation holds
any
securities or other interests and may execute written waivers of notice with
respect to any such meetings. At all such meetings, any of the foregoing
officers, in person or by proxy as aforesaid and subject to the instructions,
if
any, of the Board of Directors, may vote the securities or interests so held
by
the Corporation, may execute any other instruments with respect to such
securities or interests, and may exercise any and all rights and powers incident
to the ownership of said securities or interests. Any of the foregoing officers
may execute one or more written consents to action taken in lieu of a formal
meeting of such corporation, partnership, limited liability company,
association, joint venture, or other entity.
ARTICLE
VII
DIVIDENDS
AND OTHER DISTRIBUTIONS
Section 7.1.
Dividends
and Other Distributions.
Subject to the provisions of the DGCL, dividends and other distributions may
be
declared by the Board of Directors in such form, frequency and amounts as the
condition of the affairs of the Corporation shall render
advisable.
ARTICLE
VIII
MISCELLANEOUS
Section 8.1.
Fiscal
Year.
The fiscal year of the Corporation shall be determined by the Board of
Directors.
Section 8.2.
Seal.
The Corporation may have a corporate seal and shall be in such form as may
be
approved from time to time by the Board of Directors. The corporate seal may
be
used by causing it or a facsimile thereof to be impressed or affixed or in
any
other manner reproduced. The impression of the seal may be made and attested
by
either the Secretary or any Assistant Secretary for the authentication of
contracts or other papers requiring the seal.
Section 8.3.
Waiver
of Notice of Meetings of Stockholders, Directors and
Committees.
Whenever notice is required to be given by law or under any provision of the
Certificate of Incorporation or these Bylaws, a written waiver thereof, signed
by the person entitled to notice, or a waiver by electronic transmission by
the
person entitled to notice, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except (i) in the case when
the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened and (ii) in the case when the person
attends the meeting for the purpose of objecting to consideration of a
particular matter at the meeting that is not within the purpose or purposes
described in the notice of the meeting, the person objects to considering the
matter when it is presented. Neither the business to be transacted at, nor
the
purpose of, any regular or special meeting of the stockholders, directors or
members of a committee of directors need be specified in any written waiver
of
notice or any waiver by electronic transmission unless so required by the
Certificate of Incorporation or these Bylaws.
Section 8.4.
Indemnification
of Directors and Officers.
8.4.1.
Directors
and Officers.
The Corporation shall indemnify and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or may hereafter be amended,
any person who was or is made or is threatened to be made a party or is
otherwise involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a “proceeding”), by reason of the fact that he
or she, or a person for whom he or she is the legal representative, is or was
a
director or officer of the Corporation or, while a director or officer of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust, enterprise or nonprofit entity, including service with respect
to employee benefit plans (a “Covered Person”), against all liability and loss
suffered and expenses (including attorneys’ fees) reasonably incurred by such
Covered Person. Notwithstanding the preceding sentence, the Corporation shall
be
required to indemnify a Covered Person in connection with a proceeding (or
part
thereof) commenced by such Covered Person only if the commencement of such
proceeding (or part thereof) by the Covered Person was authorized in the
specific case by the Board of Directors.
8.4.2.
Prepayment
of Expenses.
The Corporation shall to the fullest extent not prohibited by applicable law
promptly pay the expenses (including attorneys’ fees) incurred by a Covered
Person in defending any proceeding in advance of its final disposition,
provided, however, that, to the extent required by law, such payment of expenses
in advance of the final disposition of the proceeding shall be made only upon
receipt of an undertaking by such Covered Person to repay all amounts advanced
if it should be ultimately determined that such Covered Person is not entitled
to be indemnified under this Section 8.4 or otherwise.
8.4.3.
Nonexclusivity
of Rights.
The rights conferred on any Covered Person by this Section 8.4 shall not be
exclusive of any other rights which such Covered Person may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation, these
Bylaws, agreement, vote of stockholders or disinterested directors or
otherwise.
8.4.4.
Other
Sources.
The Corporation’s obligation, if any, to indemnify or to advance expenses to any
Covered Person who was or is serving at its request as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
enterprise or nonprofit entity shall be reduced by any amount such Covered
Person may collect as indemnification or advancement of expenses from such
other
corporation, partnership, joint venture, trust, enterprise or non-profit
enterprise.
8.4.5.
Amendment
or Repeal.
Any repeal or modification of the foregoing provisions of this Section 8.4
shall not adversely affect any right or protection hereunder of any Covered
Person in respect of any act or omission occurring prior to the time of such
repeal or modification.
8.4.6.
Other
Indemnification and Prepayment of Expenses.
This Section 8.4 shall not limit the right of the Corporation, to the
extent and in the manner permitted by law, to indemnify persons other than
Covered Persons and to advance expenses to such other persons when and as
authorized by appropriate corporate action.
8.4.7.
Insurance.
The Corporation may purchase and maintain insurance on behalf of any person
that
the Corporation is permitted to indemnify in accordance with these Bylaws
against any liability asserted against any such person and incurred by such
person whether or not the Corporation would have the power to indemnify such
person against such liability under the DGCL. Any such insurance may be procured
from any insurance company designated by the Board of Directors, whether such
insurance company is formed under the laws of this state or any other
jurisdiction of the United States or elsewhere, including any insurance company
in which the Corporation has an equity interest through stock ownership or
otherwise.
8.4.8.
Selection
of Counsel.
Notwithstanding any other provision of this Section 8.4, the Corporation
may condition the right to indemnification of, and the advancement of expenses
to, a Covered Person on its right to select legal counsel representing such
Covered Person on the terms of this Subsection 8.4.8. The Corporation shall
have
the right to select counsel for any Covered Person in any legal action that
may
give rise to indemnification under this Section 8.4 provided that:
(a) the Corporation consults with the Covered Person seeking
indemnification with respect to the selection of competent legal counsel; and
(b) the Corporation pays all reasonable fees and costs incurred by the
attorney in defending the Covered Person (subject to the Corporation’s right to
recover such fees and costs if it is determined at the conclusion of the action,
suit or proceeding that there is no right of indemnification). Notwithstanding
any other provision of this Section 8.4, the Corporation shall not be
responsible for indemnification of, or the advancement of expenses to, any
Covered Person who declines to use counsel reasonably selected by the
Corporation as provided in this Subsection 8.4.8. Counsel shall be deemed to
be
reasonably selected by the Corporation if such counsel is a competent attorney
who can independently represent the Covered Person consistent with the
applicable ethical standards of the Code of Professional
Responsibility.
Section 8.5.
Interested
Directors; Quorum.
No
contract or transaction between the Corporation and one or more of its directors
or officers, or between the Corporation and any other corporation, partnership,
association or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be
void
or voidable solely for this reason, or solely because the director or officer
is
present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because any
such
director’s or officer’s votes are counted for such purpose, if: (1) the
material facts as to the director’s or officer’s relationship or interest and as
to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum; or (2) the material facts as to the director’s or
officer’s relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (3) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board
of Directors, a committee thereof or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting
of
the Board of Directors or of a committee which authorizes the contract or
transaction.
Section 8.6.
Form
of Records.
Any records maintained by the Corporation in the regular course of its business,
including its stock ledger, books of account and minute books, may be kept
on,
or by means of, or be in the form of, any information storage device or method,
provided that the records so kept can be converted into clearly legible paper
form within a reasonable time.
Section 8.7.
Record
of Stockholders.
The Secretary shall maintain, or shall cause to be maintained, a record of
the
names and addresses of the Corporation’s stockholders, in a form that permits
preparation of a list of stockholders that is arranged by class of stock
entitled to vote and, within each such class, by series of shares, 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 stockholder.
Section 8.8.
Addresses
of Stockholders.
Each stockholder shall furnish to the Secretary of the Corporation or the
Corporation’s transfer agent an address to which notices from the Corporation,
including notices of meetings, may be directed and if any stockholder shall
fail
so to designate such an address, it shall be sufficient for any such notice
to
be directed to such stockholder at such stockholder’s address last known to the
Secretary or transfer agent.
Section 8.9.
Amendment
of Bylaws.
The Board of Directors is authorized to adopt, amend or repeal these Bylaws
at
any annual meeting of the Board of Directors or any other meeting called for
that purpose. The holders of shares of Common Stock entitled to vote also may
adopt additional Bylaws and may amend or repeal any Bylaw, whether or not
adopted by them, at an annual stockholders meeting or a special meeting called,
wholly or in part, for such purpose. The power of the Board of Directors to
adopt, amend or repeal Bylaws may be limited by an amendment to the Certificate
of Incorporation or an amendment to the Bylaws adopted by the holders of Common
Stock that provides that a particular Bylaw or Bylaws may only be adopted,
amended or repealed by the holders of Common Stock.
EXHIBIT
D
Nevada
Dissenters’ Rights Statute
SECTIONS
92A.300-92A.500 OF NRS
NRS 92A.300 Definitions. As
used
in NRS
92A.300
to
92A.500,
inclusive, unless the context otherwise requires, the words and terms defined
in
NRS
92A.305
to
92A.335,
inclusive, have the meanings ascribed to them in those sections.
(Added to NRS by 1995, 2086)
NRS 92A.305 “Beneficial stockholder” defined. “Beneficial
stockholder” means a person who is a beneficial owner of shares held in a voting
trust or by a nominee as the stockholder of record.
(Added to NRS by 1995, 2087)
NRS 92A.310 “Corporate action” defined. “Corporate
action” means the action of a domestic corporation.
(Added to NRS by 1995, 2087)
NRS 92A.315 “Dissenter” defined. “Dissenter”
means a stockholder who is entitled to dissent from a domestic corporation’s
action under NRS
92A.380
and who
exercises that right when and in the manner required by NRS
92A.400
to
92A.480,
inclusive.
(Added to NRS by 1995, 2087; A 1999,
1631)
NRS 92A.320 “Fair value” defined. “Fair
value,” with respect to a dissenter’s shares, means the value of the shares
immediately before the effectuation of the corporate action to which he objects,
excluding any appreciation or depreciation in anticipation of the corporate
action unless exclusion would be inequitable.
(Added to NRS by 1995, 2087)
NRS 92A.325 “Stockholder” defined. “Stockholder”
means a stockholder of record or a beneficial stockholder of a domestic
corporation.
(Added to NRS by 1995, 2087)
NRS 92A.330 “Stockholder of record” defined. “Stockholder
of record” means the person in whose name shares are registered in the records
of a domestic corporation or the beneficial owner of shares to the extent of
the
rights granted by a nominee’s certificate on file with the domestic
corporation.
(Added to NRS by 1995, 2087)
NRS 92A.335 “Subject corporation” defined. “Subject
corporation” means the domestic corporation which is the issuer of the shares
held by a dissenter before the corporate action creating the dissenter’s rights
becomes effective or the surviving or acquiring entity of that issuer after
the
corporate action becomes effective.
(Added to NRS by 1995, 2087)
NRS 92A.340 Computation of interest. Interest
payable pursuant to NRS
92A.300
to
92A.500,
inclusive, must be computed from the effective date of the action until the
date
of payment, at the average rate currently paid by the entity on its principal
bank loans or, if it has no bank loans, at a rate that is fair and equitable
under all of the circumstances.
(Added to NRS by 1995, 2087)
NRS 92A.350 Rights of dissenting partner of domestic limited partnership.
A
partnership agreement of a domestic limited partnership or, unless otherwise
provided in the partnership agreement, an agreement of merger or exchange,
may
provide that contractual rights with respect to the partnership interest of
a
dissenting general or limited partner of a domestic limited partnership are
available for any class or group of partnership interests in connection with
any
merger or exchange in which the domestic limited partnership is a constituent
entity.
(Added to NRS by 1995, 2088)
NRS 92A.360 Rights of dissenting member of domestic limited-liability
company. The
articles of organization or operating agreement of a domestic limited-liability
company or, unless otherwise provided in the articles of organization or
operating agreement, an agreement of merger or exchange, may provide that
contractual rights with respect to the interest of a dissenting member are
available in connection with any merger or exchange in which the domestic
limited-liability company is a constituent entity.
(Added to NRS by 1995, 2088)
NRS 92A.370 Rights of dissenting member of domestic nonprofit
corporation.
1. Except as otherwise provided in subsection 2, and unless otherwise
provided in the articles or bylaws, any member of any constituent domestic
nonprofit corporation who voted against the merger may, without prior notice,
but within 30 days after the effective date of the merger, resign from
membership and is thereby excused from all contractual obligations to the
constituent or surviving corporations which did not occur before his resignation
and is thereby entitled to those rights, if any, which would have existed if
there had been no merger and the membership had been terminated or the member
had been expelled.
2. Unless otherwise provided in its articles of incorporation or bylaws,
no member of a domestic nonprofit corporation, including, but not limited to,
a
cooperative corporation, which supplies services described in chapter
704
of NRS
to its members only, and no person who is a member of a domestic nonprofit
corporation as a condition of or by reason of the ownership of an interest
in
real property, may resign and dissent pursuant to subsection 1.
(Added to NRS by 1995, 2088)
NRS 92A.380 Right of stockholder to dissent from certain corporate actions
and to obtain payment for shares.
1. Except as otherwise provided in NRS
92A.370
and
92A.390,
any
stockholder is entitled to dissent from, and obtain payment of the fair value
of
his shares in the event of any of the following corporate actions:
(a) Consummation of a conversion or plan of merger to which the domestic
corporation is a constituent entity:
(1) If approval by the stockholders is required for the conversion or merger
by
NRS
92A.120
to
92A.160,
inclusive, or the articles of incorporation, regardless of whether the
stockholder is entitled to vote on the conversion or plan of merger;
or
(2) If the domestic corporation is a subsidiary and is merged with its parent
pursuant to NRS
92A.180.
(b) Consummation of a plan of exchange to which the domestic corporation is
a
constituent entity as the corporation whose subject owner’s interests will be
acquired, if his shares are to be acquired in the plan of exchange.
(c) Any corporate action taken pursuant to a vote of the stockholders to the
extent that the articles of incorporation, bylaws or a resolution of the board
of directors provides that voting or nonvoting stockholders are entitled to
dissent and obtain payment for their shares.
(d) Any corporate action not described in paragraph (a), (b) or (c) that will
result in the stockholder receiving money or scrip instead of fractional
shares.
2. A stockholder who is entitled to dissent and obtain payment pursuant to
NRS
92A.300
to
92A.500,
inclusive, may not challenge the corporate action creating his entitlement
unless the action is unlawful or fraudulent with respect to him or the domestic
corporation.
(Added to NRS by 1995, 2087; A 2001,
1414,
3199;
2003,
3189;
2005,
2204)
NRS 92A.390 Limitations on right of dissent: Stockholders of certain
classes or series; action of stockholders not required for plan of
merger.
1. There is no right of dissent with respect to a plan of merger or
exchange in favor of stockholders of any class or series which, at the record
date fixed to determine the stockholders entitled to receive notice of and
to
vote at the meeting at which the plan of merger or exchange is to be acted
on,
were either listed on a national securities exchange, included in the national
market system by the National Association of Securities Dealers, Inc., or held
by at least 2,000 stockholders of record, unless:
(a) The articles of incorporation of the corporation issuing the shares provide
otherwise; or
(b) The holders of the class or series are required under the plan of merger
or
exchange to accept for the shares anything except:
(1) Cash, owner’s interests or owner’s interests and cash in lieu of fractional
owner’s interests of:
(I) The surviving or acquiring entity; or
(II) Any other entity which, at the effective date of the plan of merger or
exchange, were either listed on a national securities exchange, included in
the
national market system by the National Association of Securities Dealers, Inc.,
or held of record by a least 2,000 holders of owner’s interests of record;
or
(2) A combination of cash and owner’s interests of the kind described in
sub-subparagraphs (I) and (II) of subparagraph (1) of paragraph
(b).
2. There is no right of dissent for any holders of stock of the surviving
domestic corporation if the plan of merger does not require action of the
stockholders of the surviving domestic corporation under NRS
92A.130.
(Added to NRS by 1995, 2088)
NRS 92A.400 Limitations on right of dissent: Assertion as to portions only
to shares registered to stockholder; assertion by beneficial
stockholder.
1. A stockholder of record may assert dissenter’s rights as to fewer than
all of the shares registered in his name only if he dissents with respect to
all
shares beneficially owned by any one person and notifies the subject corporation
in writing of the name and address of each person on whose behalf he asserts
dissenter’s rights. The rights of a partial dissenter under this subsection are
determined as if the shares as to which he dissents and his other shares were
registered in the names of different stockholders.
2. A beneficial stockholder may assert dissenter’s rights as to shares
held on his behalf only if:
(a) He submits to the subject corporation the written consent of the stockholder
of record to the dissent not later than the time the beneficial stockholder
asserts dissenter’s rights; and
(b) He does so with respect to all shares of which he is the beneficial
stockholder or over which he has power to direct the vote.
(Added to NRS by 1995, 2089)
NRS 92A.410 Notification of stockholders regarding right of
dissent.
1. If a proposed corporate action creating dissenters’ rights is submitted
to a vote at a stockholders’ meeting, the notice of the meeting must state that
stockholders are or may be entitled to assert dissenters’ rights under
NRS
92A.300
to
92A.500,
inclusive, and be accompanied by a copy of those sections.
2. If the corporate action creating dissenters’ rights is taken by written
consent of the stockholders or without a vote of the stockholders, the domestic
corporation shall notify in writing all stockholders entitled to assert
dissenters’ rights that the action was taken and send them the dissenter’s
notice described in NRS
92A.430.
(Added to NRS by 1995, 2089; A 1997, 730)
NRS 92A.420 Prerequisites to demand for payment for
shares.
1. If a proposed corporate action creating dissenters’ rights is submitted
to a vote at a stockholders’ meeting, a stockholder who wishes to assert
dissenter’s rights:
(a) Must deliver to the subject corporation, before the vote is taken, written
notice of his intent to demand payment for his shares if the proposed action
is
effectuated; and
(b) Must not vote his shares in favor of the proposed action.
2. If a proposed corporate action creating dissenters’ rights is taken by
written consent of the stockholders, a stockholder who wishes to assert
dissenters’ rights must not consent to or approve the proposed corporate
action.
3. A stockholder who does not satisfy the requirements of subsection 1 or
2 and NRS
92A.400
is not
entitled to payment for his shares under this chapter.
(Added to NRS by 1995, 2089; A 1999,
1631;
2005,
2204)
NRS 92A.430 Dissenter’s notice: Delivery to stockholders entitled to
assert rights; contents.
1. The subject corporation shall deliver a written dissenter’s notice to
all stockholders entitled to assert dissenters’ rights.
2. The dissenter’s notice must be sent no later than 10 days after the
effectuation of the corporate action, and must:
(a) State where the demand for payment must be sent and where and when
certificates, if any, for shares must be deposited;
(b) Inform the holders of shares not represented by certificates to what extent
the transfer of the shares will be restricted after the demand for payment
is
received;
(c) Supply a form for demanding payment that includes the date of the first
announcement to the news media or to the stockholders of the terms of the
proposed action and requires that the person asserting dissenter’s rights
certify whether or not he acquired beneficial ownership of the shares before
that date;
(d) Set a date by which the subject corporation must receive the demand for
payment, which may not be less than 30 nor more than 60 days after the date
the
notice is delivered; and
(e) Be accompanied by a copy of NRS
92A.300
to
92A.500,
inclusive.
(Added to NRS by 1995, 2089; A 2005,
2205)
NRS 92A.440 Demand for payment and deposit of certificates; retention of
rights of stockholder.
1. A stockholder to whom a dissenter’s notice is sent must:
(a) Demand payment;
(b) Certify whether he or the beneficial owner on whose behalf he is dissenting,
as the case may be, acquired beneficial ownership of the shares before the
date
required to be set forth in the dissenter’s notice for this certification;
and
(c) Deposit his certificates, if any, in accordance with the terms of the
notice.
2. The stockholder who demands payment and deposits his certificates, if
any, before the proposed corporate action is taken retains all other rights
of a
stockholder until those rights are cancelled or modified by the taking of the
proposed corporate action.
3. The stockholder who does not demand payment or deposit his certificates
where required, each by the date set forth in the dissenter’s notice, is not
entitled to payment for his shares under this chapter.
(Added to NRS by 1995, 2090; A 1997, 730; 2003,
3189)
NRS 92A.450 Uncertificated shares: Authority to restrict transfer after
demand for payment; retention of rights of stockholder.
1. The subject corporation may restrict the transfer of shares not
represented by a certificate from the date the demand for their payment is
received.
2. The person for whom dissenter’s rights are asserted as to shares not
represented by a certificate retains all other rights of a stockholder until
those rights are cancelled or modified by the taking of the proposed corporate
action.
(Added to NRS by 1995, 2090)
NRS 92A.460 Payment for shares: General
requirements.
1. Except as otherwise provided in NRS
92A.470,
within
30 days after receipt of a demand for payment, the subject corporation shall
pay
each dissenter who complied with NRS
92A.440
the
amount the subject corporation estimates to be the fair value of his shares,
plus accrued interest. The obligation of the subject corporation under this
subsection may be enforced by the district court:
(a) Of the county where the corporation’s registered office is located;
or
(b) At the election of any dissenter residing or having its registered office
in
this State, of the county where the dissenter resides or has its registered
office. The court shall dispose of the complaint promptly.
2. The payment must be accompanied by:
(a) The subject corporation’s balance sheet as of the end of a fiscal year
ending not more than 16 months before the date of payment, a statement of income
for that year, a statement of changes in the stockholders’ equity for that year
and the latest available interim financial statements, if any;
(b) A statement of the subject corporation’s estimate of the fair value of the
shares;
(c) An explanation of how the interest was calculated;
(d) A statement of the dissenter’s rights to demand payment under NRS
92A.480;
and
(e) A copy of NRS
92A.300
to
92A.500,
inclusive.
(Added to NRS by 1995, 2090)
NRS 92A.470 Payment for shares: Shares acquired on or after date of
dissenter’s notice.
1. A subject corporation may elect to withhold payment from a dissenter
unless he was the beneficial owner of the shares before the date set forth
in
the dissenter’s notice as the date of the first announcement to the news media
or to the stockholders of the terms of the proposed action.
2. To the extent the subject corporation elects to withhold payment, after
taking the proposed action, it shall estimate the fair value of the shares,
plus
accrued interest, and shall offer to pay this amount to each dissenter who
agrees to accept it in full satisfaction of his demand. The subject corporation
shall send with its offer a statement of its estimate of the fair value of
the
shares, an explanation of how the interest was calculated, and a statement
of
the dissenters’ right to demand payment pursuant to NRS
92A.480.
(Added to NRS by 1995, 2091)
NRS 92A.480 Dissenter’s estimate of fair value: Notification of subject
corporation; demand for payment of estimate.
1. A dissenter may notify the subject corporation in writing of his own
estimate of the fair value of his shares and the amount of interest due, and
demand payment of his estimate, less any payment pursuant to NRS
92A.460,
or
reject the offer pursuant to NRS
92A.470
and
demand payment of the fair value of his shares and interest due, if he believes
that the amount paid pursuant to NRS
92A.460
or
offered pursuant to NRS
92A.470
is less
than the fair value of his shares or that the interest due is incorrectly
calculated.
2. A dissenter waives his right to demand payment pursuant to this section
unless he notifies the subject corporation of his demand in writing within
30
days after the subject corporation made or offered payment for his
shares.
(Added to NRS by 1995, 2091)
NRS 92A.490 Legal proceeding to determine fair value: Duties of subject
corporation; powers of court; rights of dissenter.
1. If a demand for payment remains unsettled, the subject corporation
shall commence a proceeding within 60 days after receiving the demand and
petition the court to determine the fair value of the shares and accrued
interest. If the subject corporation does not commence the proceeding within
the
60-day period, it shall pay each dissenter whose demand remains unsettled the
amount demanded.
2. A subject corporation shall commence the proceeding in the district
court of the county where its registered office is located. If the subject
corporation is a foreign entity without a resident agent in the State, it shall
commence the proceeding in the county where the registered office of the
domestic corporation merged with or whose shares were acquired by the foreign
entity was located.
3. The subject corporation shall make all dissenters, whether or not
residents of Nevada, whose demands remain unsettled, parties to the proceeding
as in an action against their shares. All parties must be served with a copy
of
the petition. Nonresidents may be served by registered or certified mail or
by
publication as provided by law.
4. The jurisdiction of the court in which the proceeding is commenced
under subsection 2 is plenary and exclusive. The court may appoint one or more
persons as appraisers to receive evidence and recommend a decision on the
question of fair value. The appraisers have the powers described in the order
appointing them, or any amendment thereto. The dissenters are entitled to the
same discovery rights as parties in other civil proceedings.
5. Each dissenter who is made a party to the proceeding is entitled to a
judgment:
(a) For the amount, if any, by which the court finds the fair value of his
shares, plus interest, exceeds the amount paid by the subject corporation;
or
(b) For the fair value, plus accrued interest, of his after-acquired shares
for
which the subject corporation elected to withhold payment pursuant to
NRS
92A.470.
(Added to NRS by 1995, 2091)
NRS 92A.500 Legal proceeding to determine fair value: Assessment of costs
and fees.
1. The court in a proceeding to determine fair value shall determine all
of the costs of the proceeding, including the reasonable compensation and
expenses of any appraisers appointed by the court. The court shall assess the
costs against the subject corporation, except that the court may assess costs
against all or some of the dissenters, in amounts the court finds equitable,
to
the extent the court finds the dissenters acted arbitrarily, vexatiously or
not
in good faith in demanding payment.
2. The court may also assess the fees and expenses of the counsel and
experts for the respective parties, in amounts the court finds
equitable:
(a) Against the subject corporation and in favor of all dissenters if the court
finds the subject corporation did not substantially comply with the requirements
of NRS
92A.300
to
92A.500,
inclusive; or
(b) Against either the subject corporation or a dissenter in favor of any other
party, if the court finds that the party against whom the fees and expenses
are
assessed acted arbitrarily, vexatiously or not in good faith with respect to
the
rights provided by NRS
92A.300
to
92A.500,
inclusive.
3. If the court finds that the services of counsel for any dissenter were
of substantial benefit to other dissenters similarly situated, and that the
fees
for those services should not be assessed against the subject corporation,
the
court may award to those counsel reasonable fees to be paid out of the amounts
awarded to the dissenters who were benefited.
4. In a proceeding commenced pursuant to NRS
92A.460,
the
court may assess the costs against the subject corporation, except that the
court may assess costs against all or some of the dissenters who are parties
to
the proceeding, in amounts the court finds equitable, to the extent the court
finds that such parties did not act in good faith in instituting the
proceeding.
5. This section does not preclude any party in a proceeding commenced
pursuant to NRS
92A.460
or
92A.490
from
applying the provisions of N.R.C.P.
68
or
NRS
17.115.
(Added to NRS by 1995, 2092)