BY-LAWS OF
HOLMES HERBS, INC.
ARTICLE I
SHAREHOLDERS
Section 1.01 Annual Meeting. The annual meeting of the
shareholders shall be held at such date and time as shall
be designated by the board of directors and stated in the
notice of the meeting or in a duly-executed waiver of
notice thereof. If the corporation shall fail to provide
notice of the annual meeting of the shareholders as set
forth above, the annual meeting of the shareholders of
the corporation shall be held during the month of
November or December of each year as determined by the
Board of Directors, for the purpose of electing,
directors of the corporation to serve during the ensuing
year and for the transaction of such other business as
may properly come before the meeting. If the election of
the directors is not held on the day designated herein
for any annual meeting, of the shareholders, or at any
adjournment thereof, the president shall cause the
election to be held at a special meeting of the
shareholders as soon thereafter as is convenient.
Section 1.02 Special Meetings. Special meetings of the
shareholders may be called by the president or the Board
of Directors and shall be called by the president at the
written request of the holders of not less than 51 % of
the issued and outstanding shares of capital stock of the
corporation.
All business lawfully to be transacted by the
shareholders may be transacted at any special meeting at
any adjournment thereof. However, no business shall be
acted upon at a special meeting, except that referred to
in the notice calling the meeting, unless all of the
outstanding capital stock of the corporation is
represented either in person or by proxy. Where all of
the capital stock is represented, any lawful business may
be transacted and the meeting shall be valid for all
purposes.
Section 1.03 Place of Meetings. Any meeting, of the
shareholders of the corporation may be held at its
principal office in the State of Nevada or such other
place in or out of the United States as the Board of
Directors may designate. A waiver of notice signed by
the shareholders entitled to vote may designate any place
for the holding of such meeting.
Section 1.04 Notice of Meetings.
(a) The secretary shall sign and deliver to all
shareholders of record written or printed notice of any
meeting at least ten (10) days, but not more than sixty
(60) days, before the date of such meeting; which
notice shall state the place, date and time of the
meeting, the general nature of the business to be
transacted, and, in the case of any meeting at which
directors are to be elected, the names of nominees, if
any, to be presented for election.
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(b) In the case of any meeting, any proper business
may be presented for action, except that the following
items shall be valid only if the general nature of the
proposal is stated in the notice or written waiver of
notice:
(1) Action with respect to any contract or
transaction between the corporation and one or more of
its directors or another firm, association, or
corporation in which one or more of its directors has a
material financial interest;
(2) Adoption of amendments to the Articles of
Incorporation; or
(3) Action with respect to the merger,
consolidation, reorganization, partial or complete
liquidation, or dissolution of the corporation.
(c) The notice shall be personally delivered or mailed
by first class mail to each shareholder of record at the
last known address thereof, as the same appears on the
books of the corporation, and the giving of such notice
shall be deemed delivered the date the same is deposited
in the United States mail, postage prepaid. If the
address of any shareholder does not appear upon the books
of the corporation, it will be sufficient to address any
notice to such shareholder at the principal office of the
corporation.
(d) The written certificate of the person calling any
meeting, duly sworn, setting forth the substance of the
notice, the time and place the notice was mailed or
personally delivered to the several shareholders, and the
addresses to which the notice was mailed shall be prima
facie evidence of the manner and fact of giving such
notice.
Section 1.05 Waiver of Notice. If all of the
shareholders of the corporation shall waive notice of a
meeting, no notice shall be required, and, whenever all
of the shareholders shall meet in person or by proxy,
such meeting shall be valid for all purposes without call
or notice, and at such meeting any corporate action may
be taken.
Section 1.06 Determination of Shareholders of Record.
(a) The Board of Directors may at any time fix a
future date as a record date for the determination of the
shareholders entitled to notice of any meeting or to vote
or entitled to receive payment of any dividend or other
distribution or allotment of any rights or entitled to
exercise any rights in respect of any other lawful
action. The record date so fixed shall not be more than
sixty (60) days prior to the date of such meeting nor
more than sixty (60) days prior to any other action.
When a record date is so fixed, only shareholders of
record on that date are entitled to notice of and to vote
at the meeting or to receive the dividend, distribution
or allotment of rights, or to exercise their rights, as
the case may be, notwithstanding any transfer of any
shares on the books of the corporation after the record
date.
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(b) If no record date is fixed by the Board of
Directors, then (1) the record date for determining
shareholders entitled to notice of or to vote at a
meeting of shareholders shall be at the close of business
on the business 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; (2) the record date for determining
shareholders entitled to give consent to corporate action
in writing without a meeting, when no prior action by the
Board of Directors is necessary, shall be the day on
which written consent is given; and (3) the record date
for determining shareholders for any other purpose shall
be at the close of business on the day on which the Board
of Directors adopts the resolution relating thereto, or
the sixtieth (60th) day prior to the date of such other
action, whichever is later.
Section 1.07 Quorum: Adjourned Meetings.
(a) At any meeting of the shareholders, a majority of
the issued and outstanding shares of the corporation
represented in person or by proxy, shall constitute a
quorum.
(b) If less than a majority of the issued and
outstanding shares are represented, a majority of shares
so represented may adjourn from time to time at the
meeting, until holders of the amount of stock required to
constitute a quorum shall be in attendance. At any such
adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been
transacted as originally called. When a shareholders'
meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time
and place thereof are announced at the meeting at which
the adjournment is taken, unless the adjournment is for
more than ten (10) days in which event notice thereof
shall be given.
Section 1.08 Voting.
(a) Each shareholder of record, such shareholder's
duly authorized proxy or attorney-in-fact shall be
entitled to one (1) vote for each share of stock standing
registered in such shareholder's name on the books of the
corporation on the record date.
(b) Except as otherwise provided herein, all votes
with respect to shares standing, in the name of an
individual on the record date (included pledged shares)
shall be cast only by that individual or such
individual's duly authorized proxy or attorney-in-fact.
With respect to shares held by a representative of the
estate of a deceased shareholder, guardian, conservator,
custodian or trustee, votes may be cast by such holder
upon proof of capacity, even though the shares do not
stand in the name of such holder. In the case of shares
under the control of a receiver, the receiver may cast
votes carried by such shares even though the shares do
not stand in the name of the receiver provided that the
order of the court of competent jurisdiction which
appoints the receiver contains the authority to cast
votes carried by such shares. If shares stand in the
name of a minor, votes may be cast only by the duly-
appointed guardian of the estate of such minor if such
guardian has provided the
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corporation with written notice and proof of such appointment.
(c) With respect to shares standing in the name of a
corporation on the record date, votes may be cast by such
officer or agents as the by-laws of such corporation
prescribe or, in the absence of an applicable by-law
provision, by such person as may be appointed by
resolution of the Board of Directors of such corporation.
In the event no person is so appointed, such votes of the
corporation may be cast by any person (including the
officer making the authorization) authorized to do so by
the Chairman of the Board of Directors, President or any
Vice President of such corporation.
(d) Notwithstanding anything to the contrary herein
contained, no votes may be cast by shares owned by this
corporation or its subsidiaries, if any. If shares are
held by this corporation or its subsidiaries, if any, in
a fiduciary capacity, no votes shall be cast with respect
thereto on any matter except to the extent that the
beneficial owner thereof possesses and exercises either a
right to vote or to give the corporation holding the same
binding instructions on how to vote.
(e) With respect to shares standing in the name of two
or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, husband
and wife as community property, tenants by the entirety,
voting trustees, persons entitled to vote under a
shareholder voting agreement or otherwise and shares held
by two or more persons (including proxy holders) having
the same fiduciary relationship respect in the same
shares, votes may be cast in the following manner:
(1) If only one such person votes, the votes of
such person binds all.
(2) If more than one person casts
votes, the act of the majority so voting
binds all.
(3) If more than one person casts votes,
but the vote is evenly split on a
particular matter, the votes shall be deemed
cast proportionately as split.
(f) Any holder of shares entitled to vote on any
matter may cast a portion of the votes in favor of such
matter and refrain from casting the remaining, votes or
cast the same against the proposal, except in the case of
elections of directors. if such holder entitled to vote
fails to specify the number of affirmative votes, it will
be conclusively presumed that the holder is casting
affirmative votes with respect to all shares held.
(g) If a quorum is present, the affirmative vote of
holders of a majority of the shares represented at the
meeting and entitled to vote on any matter shall be the
act of the shareholders, unless a vote of greater number
or voting by classes is required by the laws of the State
of Nevada, the Articles of Incorporation and these By-
Laws.
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Section 1.09 Proxies. At any meeting of shareholders,
any holder of shares entitled to vote may authorize
another person or persons to vote by proxy with respect
to the shares held by an instrument in writing and
subscribed to by the holder of such shares entitled to
vote. No proxy shall be valid after the expiration of
six (6) months from the date of execution thereof, unless
coupled with an interest or unless otherwise specified in
the proxy. In no event shall the term of a proxy exceed
seven (7) years from the date of its execution. Every
proxy shall continue in full force and effect until its
expiration or revocation. Revocation may be effected by
filing an instrument revoking the same or a duly-executed
proxy bearing a later date with the secretary of the
corporation.
Section 1.10 Order of Business. At the annual
shareholders meeting, the regular order of business shall
be as follows:
(1) Determination of shareholders present and
existence of quorum;
(2) Reading and approval of the minutes of the
previous meeting or
meetings;
(3) Reports of the
Board of Directors, the president, treasurer
and secretary of the
corporation, in the order named;
(4) Reports of committee;
(5) Election of directors;
(6) Unfinished business;
(7) New business;
(8) Adjournment.
Section 1.11 Absentees Consent to Meetings.
Transactions of any meeting of the shareholders are as
valid as though had at a meeting duly-held after regular
call and notice if a quorum is present, either in person
or by proxy, and if, either before or after the meeting,
each of the persons entitled to vote, not present in
person or by proxy (and those who, although present,
either object at the beginning of the meeting to the
transaction of any business because the meeting has not
been lawfully called or convened or expressly object at
the meeting to the consideration of matters not included
in the notice which are legally required to be included
therein), signs a written waiver of notice and/or consent
to the holding of the meeting or an approval of the
minutes thereof All such waivers, consents, and approvals
shall be filed with the corporate records and made a part
of the minutes of the meeting. Attendance of a person at
a meeting shall constitute a waiver of notice of such
meeting, except when the person objects at the beginning
of the meeting to the transaction of any business because
the meeting is not lawfully called or convened and except
that attendance at a meeting is not a waiver of any right
to object to the consideration of matters not included in
the
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notice if such objection is expressly made at the
beginning. Neither the business to be transacted at nor
the purpose of any regular or special meeting of
shareholders need be specified in any written waiver of
notice, except as otherwise provided in Section 1.04(b)
of these By-Laws.
Section 1.12 Action Without meeting. Any action which
may be taken by the vote of the shareholders at a meeting
may be taken without a meeting if consented to by the
holders of a majority of the shares entitled to vote or
such greater proportion as may be required by the laws of
the State of Nevada, the Articles of Incorporation, or
these By-Laws. Whenever action is taken by written
consent, a meeting of shareholders needs not be called or
noticed.
ARTICLE II
DIRECTORS
Section 2.01 Number, Tenure and Qualification. Except
as otherwise provided herein, the Board of Directors of
the corporation shall consist of at least one (1) but no
more than nine (9) persons, who shall be elected at the
annual meeting of the shareholders of the corporation and
who shall hold office for one (1) year or until their
successors are elected and qualify.
Section 2.02 Resignation. Any director may resign
effective upon giving written notice to the chairman of
the Board of Directors, the president, or the secretary
of the corporation, unless the notice specifies a later
time for effectiveness of such resignation. If the Board
of Directors accepts the resignation of a director
tendered to take effect at a future date, the Board or
the shareholders may elect a successor to take office
when the resignation becomes effective.
Section 2.03 ) Reduction in Number. No reduction of
the number of directors shall have the effect of removing
any director prior to the expiration of his term of
office.
Section 2.04 Removal.
(a) The Board of Directors or the shareholders of
the corporation, by a majority vote, may declare
vacant the office of a director who has been
declared incompetent by an order of a court of
competent jurisdiction or convicted of a felony.
Section 2.05 Vacancies.
(a) A vacancy in the Board of Directors because
of death, resignation, removal, change in number
of directors, or otherwise may be filled by the
shareholders at any regular or special meeting or
any adjourned meeting thereof or the remaining
director(s) by the affirmative vote of a majority
thereof. A Board of Directors consisting of less
than the maximum number authorized in Section 2.01
of ARTICLE II constitutes vacancies on the Board
of Directors for purposes of this paragraph and
may be filled as set forth above
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including by the election of a majority of the
remaining directors. Each successor so elected
shall hold office until the next annual meeting of
shareholders or until a successor shall have been
duly-elected and qualified.
(b) If, after the filling of any vacancy by
the directors, the directors then in office
who have been elected by the shareholders shall
constitute less than a majority of the
directors then in office, any holder or holders of an
aggregate of five percent (5%) or more of the total number of
shares entitled to vote may call a special meeting of
shareholders to be held to elect the entire Board of Directors.
The term of office of any director shall terminate upon such
election of a successor.
Section 2.06 Regular Meetings. Immediately following
the adjournment of, and at the same place as, the annual
meeting of the shareholders, the Board of Directors,
including directors newly elected, shall hold its annual
meeting without notice, other than this provision, to
elect officers of the corporation and to transact such
further business as may be necessary or appropriate. The
Board of Directors may provide by resolution the place,
date and hour for holding additional regular meetings.
Section 2.07 Special Meetings. Special meetings of the
Board of Directors may be called by the chairman and
shall be called by the chairman upon the request of any
two (2) directors or the president of the corporation.
Section 2.08 Place of Meetings. Any meeting of the
directors of the corporation may be held at its principal
office in the State of Nevada, or at such other place in
or out of the United States as the Board of Directors may
designate. A waiver or notice signed by the directors
may designate any place for the holding of such meeting.
Section 2.09 Notice of Meetings. Except as otherwise
provided in Section 2.06, the chairman shall deliver to
all directors written or printed notice of any special
meeting, at least three (3) days before the date of such
meeting, by delivery of such notice personally or mailing
such notice first class mail, or by telegram. If mailed,
the notice shall be deemed delivered two (2) business
days following the date the same is deposited in the
United States mail, postage prepaid. Any director may
waive notice of any meeting, and the attendance of a
director at a meeting shall constitute a waiver of notice
of such meeting, unless such attendance is for the
express purpose of objecting to the transaction of
business threat because the meeting is not properly
called or convened.
Section 2.10 Quorum:Adjourned Meetings.
(a) A majority of the Board of Directors in
office shall constitute a quorum.
(b) At any meeting of the Board of Directors
where a quorum is not present, a majority of those
present may adjourn, from time to time, until a
quorum is present, and no notice of such
adjournment shall be required. At any adjourned
meeting where a quorum is present, any business
may be transacted which could have been transacted
at the meeting originally called.
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Section 2.11 Action Without Meeting. Any action
required or permitted to be taken at any meeting of the
Board of Directors or any committee thereof may be taken
without a meeting if a written consent thereto is signed
by all of the members of the Board of Directors or of
such committee. Such written consent or consents shall
be filed with the minutes of the proceedings of the Board
of Directors or committee. Such action by written
consent shall have the same force and effect as the
unanimous vote of the Board of Directors or committee.
Section 2.12 Telephonic Meetings. Meetings of the
Board of Directors may be held through the use of a
conference telephone or similar communications equipment
so long as all members participating in such meeting can
hear one another at the time of such meeting.
Participation in such a meeting constitutes presence in
person at such meeting.
Section 2.13 Board Decisions. The affirmative 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.
Section 2.14 Powers and Duties.
(a) Except as otherwise provided in the Articles
of Incorporation or the laws of
the State of Nevada, the Board of Directors is
invested with the complete and unrestrained
authority to manage the affairs of the
corporation, and is authorized to exercise for
such purpose as the general agent of the
corporation, its entire corporate authority in
such manner as it sees fit. The Board of
Directors may delegate any of its authority to
menace, control or conduct the current business of
the corporation to any standing or special
committee or to any officer or agent and to
appoint any persons to be agents of the
corporation with such powers, including the power
to sub-delegate, and upon such terms as may be
deemed fit.
(b) The Board of Directors shall present to the
shareholders at annual meetings of the
shareholders, and when called for by a majority
vote of the shareholders at a special meeting of
the shareholders, a full and clear statement of
the condition of the corporation, and shall, at
request, furnish each of the shareholders with a
true copy thereof.
(c) The Board of Directors, in its discretion,
may submit any contract or act for approval or
ratification at any annual meeting of the
shareholders or any special meeting, properly
called for the purpose of considering any such
contract or act, provided a quorum is present.
The contract or act shall be valid and binding
upon the corporation and upon all the shareholders
thereof, if approved and ratified by the
affirmative vote of a majority of the shareholders
at such meeting.
(d) In furtherance and not in limitation of the
powers conferred by the laws of the State of
Nevada, the Board of Directors is expressly
authorized and empowered to issue
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stock of the Corporation for money, property, services
rendered, labor performed, cash advanced, acquisitions for other
corporations or for any other assets of value in accordance with
the action of the Board of Directors without vote or consent of
the shareholders and the judgment of the Board of Directors as to
the value received and in return therefore shall be conclusive
and said stock, when issued, shall be fully-paid and non-
assessable.
Section 2.15 Compensation. The directors shall be
allowed and paid all necessary expenses incurred in
attending any meetings of the Board.
Section 2.16 Board Officers.
(a) At its annual meeting, the Board of Directors
shall elect, from among its members, a chairman to preside at the
meetings of the Board of Directors. The Board of Directors may
also elect such other board officers and for such term as it may,
from time to time, determine advisable.
(b) Any vacancy in any board office because of
death, resignation, removal or otherwise may be
filled by the Board of Directors for the unexpired
portion of the term of such office.
Section 2.17 Order of Business. The order of business
at any meeting, of the Board of Directors shall be as
follows:
(1) Determination of members present and
existence of quorum;
(2) Reading- and approval of the minutes of
any previous meeting or
meetings;
(3) Reports of officers and
committeemen;
(4) Election of officers;
(5) Unfinished business;
(6) New business;
(7) Adjournment.
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ARTICLE III
OFFICERS
Section 3.01 Election. The Board of Directors, at its
first meeting following the annual meeting of
shareholders, shall elect a president, a secretary and a
treasurer to hold office for one (1) year next coming and
until their successors are elected and qualify. Any
person may hold two or more offices. The Board of
Directors may, from time to time, by resolution, appoint
one or more vice presidents, assistant secretaries,
assistant treasurers and transfer agents of the
corporation as it may deem advisable; prescribe their
duties; and fix their compensation.
Section 3.02 Removal; Resignation. Any officer or
agent elected or appointed by the Board of Directors may
be removed by it whenever, in its judgment, the best
interest of the corporation would be served thereby. Any
officer may resign at any time upon written notice to the
corporation without prejudice to the rights, if any, of
the corporation under any contract to which the resigning
officer is a party.
Section 3.03 Vacancies. Any vacancy in any office
because of death, resignation, removal, or otherwise may
be filled by the Board of Directors for the unexpired
portion of the term of such office.
Section 3.04 President. The president shall be the
general manager and executive officer of the corporation,
subject to the supervision and control of the Board of
Directors, and shall direct the corporate affairs, with
full power to execute all resolutions and orders of the
Board of Directors not especially entrusted to some other
officer of the corporation. The president shall preside
at all meetings of the shareholders and shall sign the
certificates of stock issued by the corporation, and
shall perform such other duties as shall be prescribed by
the Board of Directors.
Unless otherwise ordered by the Board of Directors, the
president shall have full power and authority on behalf
of the corporation to attend and to act and to vote at
any meetings of the shareholders of any corporation in
which the corporation may hold stock and, at any such
meetings, shall possess and may exercise any and all
rights and powers incident to the ownership of such
stock. The Board of Directors, by resolution from time
to time, may confer like powers on any person or persons
in place of the president to represent the corporation
for these purposes.
Section 3.05 Vice President. The Board of Directors
may elect one or more vice presidents who shall be vested
with all the powers and perform all the duties of the
president whenever the president is absent or unable to
act, including the signing of the certificates of stock
issued by the corporation, and the vice president shall
perform such other duties as shall be prescribed by the
Board of Directors.
Section 3.06 Secretary. The secretary shall keep the
minutes of all meetings of the shareholders and the Board
of Directors in books provided for that purpose. The
secretary shall
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attend to the giving and service of all notices of the
corporation, may sign with the president in the name of
the corporation all contracts authorized by the Board of
Directors or appropriate committee, shall have the
custody of the corporate seal, shall affix the corporate
seal to all certificates of stock duly issued by the
corporation, shall have charge of stock certificate
books, transfer books and stock ledgers, and such other
books and papers as the Board of Directors or appropriate
committee may direct, and shall, in general perform all
duties incident to the office of the secretary. All
corporate books kept by the secretary shall be open for
examination by any director at any reasonable time.
Section 3.07 Assistant Secretary. The Board of
Directors may appoint an assistant secretary who shall
have such powers and perform such duties as may be
prescribed for him by the secretary of the corporation or
by the Board of Directors.
Section 3.08 Treasurer. The treasurer shall be the
chief financial officer of the corporation, subject to
the supervision and control of the Board of Directors,
and shall have custody of all the funds and securities of
the corporation. When necessary or proper, the treasurer
shall endorse on behalf of the corporation for collection
checks, notes and other obligations, and shall deposit
all monies to the credit of the corporation in such bank
or banks or other depository as the Board of Directors
may designate, and shall sign all receipts and vouchers
for payments made by the corporation. Unless otherwise
specified by the Board of Directors, the treasurer shall
sign with the president all bills of exchange and
promissory notes of the corporation, shall also have the
care and custody of the stocks, bonds, certificates,
vouchers, evidence of debts, securities and such other
property belonging to the corporation as the Board of
Directors shall designate, and shall sign all papers
required by law, by these By-laws or by the Board of
Directors to be signed by the treasurer. The treasurer
shall enter regularly in the books of the corporation, to
be kept for that purpose, full and accurate accounts of
all monies received and paid on account of the
corporation and whenever required by the Board of
Directors, the treasurer shall render a statement of any
or all accounts. The treasurer shall at all reasonable
times exhibit the books of account to any directors of
the corporation and shall perform all acts incident to
the position of treasurer subject to the control of the
Board of Directors. The treasurer shall, if required by
the Board of Directors,give a bond to the corporation in
such sum and with such security as shall be approved by
the Board of Directors for the faithful performance of
all the duties of the treasurer and for restoration to
the corporation in the event of the treasurer's death,
resignation, retirement, or removal from office, of all
books, records, papers, vouchers, money and other
property belonging to the corporation. The expense of
such bond shall be borne by the corporation.
Section 3.09 Assistant Treasurer. The Board of
Directors may appoint an assistant treasurer who shall
have such powers and perform such duties as may be
prescribed by the treasurer of the corporation or by the
Board of Directors, and the Board of Directors may
require the assistant treasurer to give a bond to the
corporation in such sum and with such security as it may
approve, for the faithful performance of the duties of
assistant treasurer, and for the restoration to the
corporation, in the event of the assistant treasurer's
death, resignation, retirement or removal from office, of
all books, records, papers, vouchers, money and other
property belonging to the corporation. The expense of
such bond shall be borne by the corporation.
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ARTICLE IV
CAPITAL STOCK
Section 4.01 Issuance. Shares of capital stock of the
corporation shall be issued in such manner and at such
times and upon such conditions as shall be prescribed by
the Board of Directors.
Section 4.02 Certificates. Ownership in the
corporation shall be evidenced by certificates for shares
of stock in such form as shall be prescribed by the Board
of Directors, shall be under the seal of the corporation
and shall be signed by the president or the vice
president and also by the secretary or an assistant
secretary. Each certificate shall contain the name of
the record holder, the number, designation, if any, class
or series of shares represented, a statement of summary
of any applicable rights, preferences, privileges, or
restrictions thereon, and a statement that the shares are
assessable, if applicable. All certificates shall be
consecutively numbered. The name and address of the
shareholder, the number of shares, and the date of issue
shall be entered on the stock transfer books of the
corporation.
Section 4.03 Surrender: Lost or Destroyed Certificates.
All certificates surrendered to the corporation, except
those representing shares of treasury stock, shall be
canceled and no new certificates shall be issued until
the former certificate for a like number of shares shall
have been canceled, except that in case of a lost,
stolen, destroyed or mutilated certificate, a new one may
be issued therefor. However, any shareholder applying
for the issuance of a stock certificate in lieu of one
alleged to have been lost, stolen, destroyed or mutilated
shall, prior to the issuance of a replacement, provide
the corporation with his, her or its affidavit of the
facts surrounding the loss, theft, destruction or
mutilation and an indemnity bond in an amount and upon
such terms as the treasurer, or the Board of Directors,
shall require. In no case shall the bond be in amount
less than twice the current market value of the stock and
it shall indemnify the corporation against any loss,
damage, cost or inconvenience arising as a consequence of
the issuance of a replacement certificate.
Section 4.04 Replacement Certificate. When the
Articles of Incorporation are amended in any way
affecting, the statements contained in the certificates
for outstanding shares of capital stock of the
corporation or it becomes desirable for any reason,
including, without limitation, the merger or
consolidation of the corporation with another corporation
or the reorganization of the corporation, to cancel any
outstanding certificate for shares and issue a new
certificate therefor conforming to the rights of the
holder, the Board of Directors may order any holders of
outstanding certificates for shares to surrender and
exchange the same for new certificates within a
reasonable time to be fixed by the Board of Directors.
The order may provide that a holder of any certificate(s)
ordered to be surrendered shall not be entitled to vote,
receive dividends or exercise any other rights of
shareholders until the holder has complied with the order
provided that such order operates to suspend such rights
only after notice and until compliance.
Page 12
Section 4.05 Transfer of Shares. No transfer of stock
shall be valid as against the corporation except on
surrender and cancellation by the certificate therefor,
accompanied by an assignment or transfer by the
registered owner made either in person or under
assignment. Whenever any transfer shall be expressly
made for collateral security and not absolutely, the
collateral nature of the transfer shall be reflected in
the entry of transfer on the books of the corporation.
Section 4.06 Transfer Agent. The Board of Directors
may appoint one or more transfer agents and registrars of
transfer and may require all certificates for shares of
stock to bear the signature of such transfer agent and
such registrar of transfer.
Section 4.07 Stock Transfer Books. The stock transfer
books shall be closed for a period of ten (10) days prior
to all meetings of the shareholders and shall be closed
for the payment of dividends as provided in Article V
hereof and during such periods as, from time to time, may
be fixed by the Board of Directors, and, during such
periods, no stock shall be transferable.
Section 4.08 Miscellaneous. The Board of Directors
shall have the power and authority to make such rules and
regulations not inconsistent herewith as it may deem
expedient concerning the issue, transfer and registration
of certificates for shares of the capital stock of the
corporation.
ARTICLE V
DIVIDENDS
Section 5.01 Dividends may be declared, subject to the
provisions of the laws of the State of Nevada and the
Articles of Incorporation, by the Board of Directors at
any regular or special meeting and may be paid in cash,
property, shares of corporate stock, or any other medium.
The Board of Directors may fix in advance a record date,
as provided in Section 1.06 of these By-laws, prior to
the dividend payment for the purpose of determining
shareholders entitled to receive payment of any dividend.
The Board of Directors may close the stock transfer books
for such purpose for a period of not more than ten (10)
days prior to the payment date of such dividend.
ARTICLE VI
OFFICES; RECORDS; REPORTS; SEAL AND FINANCIAL MATTERS
Section 6.01 Principal Office. The principal office of
the corporation in the State of Nevada shall be as
designated by the Board of Directors and so filed with
the State of Nevada, and the corporation may also have an
office in any other state or territory as the Board of
Directors may designate.
Page 13
Section 6.02 Records. The stock transfer books and a
certified copy of the By-laws, Articles of Incorporation,
any amendments thereto, and the minutes of the
proceedings of the shareholders, the Board of Directors,
and committees of the Board of Directors shall be kept at
the principal office of the corporation for the
inspection of all who have the right to see the same and
for the transfer of stock. All other books of the
corporation shall be kept at such places as may be
prescribed by the Board of Directors.
Section 6.03 Financial Report on Request. Any
shareholder or shareholders holding at least five percent
(5%) of the outstanding shares of any class of stock may
make a written request for an income statement of the
corporation for the three (3) month, six (6) month, or
nine (9) month period of the current fiscal year ended
more than thirty (30) days prior to the date of the
request and a balance sheet of the corporation as of the
end of such period. In addition, if no annual report for
the last fiscal year has been sent to shareholders, such
shareholder or shareholders may make a request for a
balance sheet as of the end of such fiscal year and an
income statement and statement of changes in financial
position for such fiscal year. The statement shall be
delivered or mailed to the person making the request
within thirty (30) days thereafter. A copy of the
statements shall be kept on file in the principal office
of the corporation for twelve (12) months, and such
copies shall be exhibited at all reasonable times to any
shareholder demanding an examination of them or a copy
shall be mailed to each shareholder. Upon request by any
shareholder, there shall be mailed to the shareholder a
copy of the last annual, semiannual or quarterly income
statement which it has prepared and a balance sheet as of
the end of the period. The financial statements referred
to in this Section 6.03 shall be accompanied by the
report thereon, if any, of any independent accountants
engaged by the corporation or the certificate of an
authorized officer of the corporation that such financial
statements were prepared without audit from the books and
records of the corporation.
Section 6.04 Right of Inspection.
(a) The accounting books and records and minutes of
proceedings of the shareholders and the Board of Directors and
committees of the Board of Directors shall be open to inspection
upon the written demand of any shareholder or holder of a voting
trust certificate at any reasonable time during usual business
hours for a purpose reasonably related to such holder's interest
as a shareholder or as the holder of such voting trust
certificate. This right of inspection shall extend to the
records of the subsidiaries, if any, of the corporation. Such
inspection may be made in person or by agent or attorney, and the
right of inspection includes the right to copy and make extracts.
(b) Every director shall have the absolute right
at any reasonable time to inspect
and copy all books, records and documents of every
kind and to inspect the physical
properties of the corporation and/or its
subsidiary corporations. Such inspection may be
made in person or by agent or attorney, and the
right of inspection includes the right to copy and
make extracts.
Page 14
Section 6.05 Corporate Seal. The Board of Directors
may, by resolution, authorize a seal, and the seal may be
used by causing it, or a facsimile, to be impressed or
affixed or reproduced or otherwise. Except when
otherwise specifically provided herein, any officer of
the corporation shall have the authority to affix the
seal to any document requiring it.
Section 6.06 Fiscal Year. The fiscal year-end of the
corporation shall be the calendar year or such other term
as may be fixed by resolution of the Board of Directors.
Section 6.07 Reserves. The Board of Directors may
create, by resolution, out of the earned surplus of the
corporation such reserves as the directors may, from time
to time, in their discretion, think proper to provide for
contingencies, or to equalize dividends or to repair or
maintain any property of the corporation, or for such
other purpose as the Board of Directors may deem
beneficial to the corporation, and the directors may
modify or abolish any such reserves in the manner in
which they were created.
ARTICLE VII
INDEMNIFICATION
Section 7.01 Indemnification. The corporation shall,
unless prohibited by Nevada Law, indemnify any person (an
"Indemnitee") who is or was involved in any manner
(including, without limitation, as a party or a witness)
or is threatened to be so involved in any threatened,
pending or completed action suit or proceeding, whether
civil, criminal, administrative, arbitrative or
investigative, including without limitation, any action,
suit or proceeding brought by or in the right of the
corporation to procure a judgement in its favor
(collectively, a "Proceeding") by reason of the fact that
he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture,
trust, employee benefit plan or other entity or
enterprise, against all Expenses and Liabilities actually
and reasonably incurred by him in connection with such
Proceeding. The right to indemnification conferred in
this Article shall be presumed to have been relied upon
by the directors, officers, employees and agents of the
corporation and shall be enforceable as a contract right
and inure to the benefit of heirs, executors and
administrators of such individuals.
Section 7.02 Indemnification Contracts. The Board of
Directors is authorized on behalf of the corporation, to
enter into, deliver and perform agreements or other
arrangements to provide any Indemnitee with specific
rights of indemnification in addition to the rights
provided hereunder to the fullest extent permitted by
Nevada Law. Such agreements or arrangements may provide
(i) that the Expenses of officers and directors incurred
in defending a civil or criminal action, suit or
proceeding, must be paid by the corporation as they are
incurred and in advance of the final disposition of any
such action, suit or proceeding provided that, if
required by Nevada Law at the time of such advance, the
officer or director provides an undertaking, to repay
such amounts if it is ultimately determined
Page 15
by a court of competent jurisdiction that such individual
is not entitled to be indemnified against such expenses,
(iii) that the Indemnitee shall be presumed to be
entitled to indemnification under this Article or such
agreement or arrangement and the corporation shall have
the burden of proof to overcome that presumption, (iii)
for procedures to be followed by the corporation and the
Indemnitee in making any determination of entitlement to
indemnification or for appeals therefrom and (iv) for
insurance or such other Financial Arrangements described
in Paragraph 7.02 of this Article, all as may be deemed
appropriate by the Board of Directors at the time of
execution of such agreement or arrangement.
Section 7.03 Insurance and Financial Arrangements. The
corporation may, unless prohibited by Nevada Law,
purchase and maintain insurance or make other financial
arrangements ("Financial Arrangements") on behalf of any
Indemnity for any liability asserted against him and
liability and expenses incurred by him in his capacity as
a director, officer, employee or agent, or arising out of
his status as such, whether or not the corporation has
the authority to indemnify him against such liability and
expenses. Such other Financial Arrangements may include
(i) the creation of a trust fund, (ii) the establishment
of a program of self-insurance, (iii) the securing of the
corporation's obligation of indemnification by granting a
security interest or other lien on any assets of the
corporation, or (iv) the establishment of a letter of
credit, guaranty or surety.
Section 7.04 Definitions. For purposes of this
Article:
Expenses. The word "Expenses" shall be broadly
construed and, without limitation, means (i) all direct
and indirect costs incurred, paid or accrued, (ii) all
attorneys' fees, retainers, court costs, transcripts,
fees of experts, witness fees, travel expenses, food
and lodging, expenses while traveling, duplicating
costs, printing, and binding costs, telephone charges,
postage, delivery service, freight or other
transportation fees and expenses, (iii) all other
disbursements and out-of-pocket expenses, (iv) amounts
paid in settlement, to the extent permitted by Nevada
Law, and (v) reasonable compensation for time spent by
the Indemnitee for which he is otherwise not
compensated by the corporation or any third party,
actually and reasonably incurred in connection with
either the appearance at or investigation, defense,
settlement or appeal of a Proceeding or establishing or
enforcing a right to indemnification under any
agreement or arrangement, this Article, the Nevada Law
or otherwise; provided, however, that "Expenses" shall
not include any judgments or fines or excise taxes or
penalties imposed under the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or other
excise taxes or penalties.
Liabilities. "Liabilities" means liabilities of any
type whatsoever, including, but not limited to,
judgments or fines, ERISA or other excise taxes and
penalties, and amounts paid in settlement.
Nevada Law. "Nevada Law" means Chapter 78 of the
Nevada Revised Statutes as amended and in effect from
time to time or any successor or other statutes of
Nevada having, similar import and effect.
This Article. "This Article" means Paragraphs 7.01
through 7.04 of these By-Laws or any portion of them.
Power of Stockholders. Paragraphs 7.01 through 7.04,
including this Paragraph, of these By-Laws may be amended
by the stockholders only by vote of the holders of sixty-
six and two-thirds percent (66 2/3%) of the entire number
of shares of each class, voting separately, of the
outstanding capital stock of the corporation (even though
the right of any class to vote is otherwise restricted or
denied); provided, however, no amendment or repeal of
this Article shall adversely affect any right of any
Indemnitee existing at the time such amendment or repeal
becomes effective.
Page 16
Power of Directors. Paragraphs 7.01 through 7.04 and
this Paragraph of these ByLaws may be amended or repealed
by the Board of Directors only by vote of eighty percent
(80%) of the total number of Directors and the holders of
sixty-six and two-thirds percent (66 2/3) of the entire
number of shares of each class, voting separately, of the
outstanding capital stock of the corporation (even though
the night of any class to vote is otherwise restricted or
denied); provided, however, no amendment or repeal of
this Article shall adversely affect any right of any
Indemnitee existing, at the time such amendment or repeal
becomes effective.
ARTICLE VIII
BY-LAWS
Section 8.01 Amendment. Amendments and changes of
these By-Laws may be made at any regular or special
meeting of the Board of Directors by a vote of not less
than all of the entire Board, or may be made by a vote
of, or a consent in writing signed by the holders of a
majority of the issued and outstanding capital stock.
Section 8.02 Additional by-laws. Additional by-laws
not inconsistent herewith may be adopted by the Board of
Directors at any meeting of the Board of Directors at
which a quorum is present by an affirmative vote of a
majority of the directors present or by the unanimous
consent of the Board of Directors in accordance with
Section 2.11 of these By-laws.
CERTIFICATION
I, the undersigned, being the duly elected secretary of
the Corporation, do hereby certify that
the foregoing By-laws were adopted by the
Board of Directors on the 31 ST. day of December, 1998.
Signed Patricia Wiate
Secretary
Page 17
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
HOLMES HERBS, INC.
By: /s/ Patricia Wiate
Patricia Wiate, President
