AMENDED AND RESTATED BYLAWS
OF
E-PAWN.COM, INC.
(THE "CORPORATION")
The Board of Directors of E-Pawn.com, Inc., unanimously adopts the
following By laws, which amend and supercede all previous Bylaws of the
Corporation.
ARTICLE I
OFFICES
SECTION I.1. OFFICES. The principal business office of the Corporation
shall be determined by the Board of Directors. The Corporation may have such
other business offices within or without the State of Nevada as the Board of
Directors may from time to time establish.
ARTICLE II
CAPITAL STOCK
SECTION II.1. CERTIFICATE REPRESENTING SHARES. Shares of the capital
stock of the Corporation shall be represented by certificates in such form or
forms as the Board of Directors may approve, provided that such form or forms
shall comply with all applicable requirements of law or of the Articles of
Incorporation. Such certificates shall be signed by the president or a vice
president, and by the secretary or an assistant secretary of the Corporation and
may be sealed with the seal of the Corporation or imprinted or otherwise marked
with a facsimile or such seal. In the case of any certificate countersigned by
any transfer agent or registrar, provided such countersigner is not the
Corporation itself or an employee thereof, the signature of any or all of the
foregoing officers of the Corporation may be represented by a printed facsimile
thereof. If any officer whose signature, or a facsimile thereof, shall have been
set upon any certificate shall cease, prior to the issuance of such certificate,
to occupy the position in right of which the signature, or facsimile thereof,
was so set upon such certificate the Corporation may nevertheless adopt and
issue such certificate with the same effect as if such officer occupied such
position as of such date of issuance and issuance and delivery of such
certificate by the Corporation shall constitute adoption thereof by the
Corporation. The certificates shall be consecutively numbered, and as they are
issued, a record of such issuance shall be entered in the books of the
Corporation.
SECTION II.2. STOCK CERTIFICATE BOOK AND SHAREHOLDERS OF RECORD. The
secretary of the Corporation shall maintain, among other records, a stock
certificate book, the stubs in which shall set forth the names and addresses of
the holders of all issued shares of the Corporation, the number of shares held
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by each, the number of certificates representing such shares, the date of issue
of such certificates, and whether or not such shares originate from original
issue or from transfer. The names and addresses of shareholders as they appear
on the stock certificate book shall be the official list of shareholders of
record of the Corporation for all purposes. The Corporation shall be entitled to
treat the holder of record of any shares as the owner thereof for all purposes,
and shall not be bound to recognize any equitable or other claim to or interest
in such shares or any rights deriving from such shares on the part of any other
person, including, but without limitation, a purchaser, assignee, or transferee,
unless and until such other person becomes the holder of record of such shares,
whether or not the Corporation shall have either actual or constructive notice
of the interest of such other person.
SECTION II.3. SHAREHOLDER'S CHANGE OF NAME OR ADDRESS. Each shareholder
shall promptly notify the secretary of the Corporation, at its principal
business office, by written notice sent by certified mail, return receipt
requested, of any change in name or address of the shareholder from that as it
appears upon the office list of shareholders of record of the Corporation. The
secretary of the Corporation shall then enter such changes into all affected
Corporation records, including, but not limited to, the official list of
shareholders of record.
SECTION II.4. TRANSFER OF STOCK. The shares represented by any
certificate of the Corporation are transferable only on the books of the
Corporation by the holder of record thereof or by the duly authorized attorney
or legal representative upon surrender of the certificate for such shares,
properly endorsed or assigned. The Board of Directors may make such rules and
regulations concerning the issue, transfer, registration and replacement of
certificates as they deem desirable or necessary.
SECTION II.5. TRANSFER AGENT AND REGISTRAR. The Board of Directors may
appoint one or more transfer agents or registrars of the shares, or both, and
may require all share certificates to bear the signature of a transfer agent or
registrar, or both.
SECTION II.6. LOST, STOLEN OR DESTROYED CERTIFICATES. The Corporation
may issue a new certificate for shares of stock in the place of any certificate
theretofore issued and alleged to have been lost, stolen or destroyed, but the
Board of Directors may require the owner of such lost, stolen or destroyed
certificate, or the legal representative, to furnish an affidavit as to such
loss, theft, or destruction and to give a bond in such form and substance, and
with such surety or sureties, with fixed or open penalty, as the Board may
direct, in order to indemnify the Corporation and its transfer agents and
registrars, if any, against any claim that may be made on account of the alleged
loss, theft or destruction of such certificate.
ARTICLE III
THE SHAREHOLDERS
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SECTION III.1. ANNUAL MEETING. Commencing in the calendar year 2001,
the annual meeting of the shareholders, for the election of directors and for
the transaction of such other business as may properly come before the meeting,
shall be held at the principal office of the Corporation at 10:00 a.m. local
time, on the first Thursday of September of each year unless such day is a legal
holiday, in which case such meeting shall be held at such hour on the first day
thereafter which is not a legal holiday; or at such other place and time as may
be designated by the Board of Directors. Failure to hold any annual meeting or
meetings shall not work a forfeiture or dissolution of the Corporation.
SECTION III.2. SPECIAL MEETINGS. Except as otherwise provided by law or
by the Articles of Incorporation, special meetings of the shareholders may be
called by the chairman of the Board of Directors, the president, any one of the
directors, or the holders of not less than one-tenth of all the shares having
voting power at such meeting, and shall be held at the principal office of the
Corporation or at such other place, and at such time, as may be stated in the
notice calling such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purpose stated in the notice of such
meeting given in accordance with the terms of Section 3.3.
SECTION III.3. NOTICE OF MEETINGS-WAIVER. Written or printed notice of
each meeting of shareholders, stating the place, day and hour of any meeting
and, in case of a special shareholders' meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than 10 nor more than
60 days before the date of such meeting, to each shareholder of record entitled
to vote at such meeting. If mailed, such notice shall be deemed to be delivered
when deposited in the United States mail addressed to the shareholder at the
address of the shareholder as it appears on the stock transfer books of the
Corporation, with postage thereon prepaid. Such further or earlier notice shall
be given as may be required by law. The signing by a shareholder of a written
waiver of notice of any shareholders' meeting, whether before or after the time
stated in such waiver, shall be equivalent to the receiving by said shareholder
of all notice required to be given with respect to such meeting. Attendance by a
shareholder, whether in person or by proxy, at a shareholders' meeting shall
constitute a waiver of notice of such meeting. No notice of any adjournment of
any meeting shall be required.
SECTION III.4. CLOSING OF TRANSFER BOOKS AND FIXING RECORD DATE. For
the purpose of determining shareholders entitled to notice of, or to vote at,
any meeting of shareholders or any adjournment thereof, or shareholders entitled
to receive payment of any dividend or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors of the
Corporation may provide that the stock transfer books shall be closed for a
stated period in no case to exceed 50 days. If the stock transfer books shall be
closed for the purpose of determining shareholders entitled to notice of or to
vote at a meeting of shareholders, such books shall be closed for at least 10
days immediately preceding such meeting. In lieu of closing the stock transfer
books, the Board of Directors may fix in advance a date as the record date for
any such determination of shareholders, such date in no case to be more than 50
days prior to the date on which the particular action requiring such
determination of shareholders is to be taken. If the stock transfer books are
not closed and no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or shareholders
entitled to receive payment of dividend, the date of which notice of the meeting
is mailed or the date on which the resolution of the Board of Directors
declaring such dividend is adopted, as the case may be, shall be the record date
of such determination of shareholders. When a determination of shareholders
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entitled to vote at any meeting of shareholders has been made, as provided in
this section, such determination shall apply to any adjournment thereof except
where the determination has been made through the closing of stock transfer
books and the stated period of closing has expired.
SECTION III.5. VOTING LIST. The officer or agent having charge of the
stock transfer books for shares of the Corporation shall make, at least 10 days
before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares held by each,
which list, for a period of ten days prior to such meeting, shall be kept on
file at the registered office of the Corporation and shall be subject to lawful
inspection by any shareholders during the whole time of the meeting. Failure to
comply with this section shall not affect the validity of any action taken at
such meeting.
SECTION III.6. QUORUM AND OFFICERS. Except as otherwise provided by
law, by the Articles of Incorporation or by these Bylaws, the holder of a
majority of the shares entitled to vote and represented in person or by proxy
shall constitute a quorum at a meeting of shareholders, but the shareholders
present at any meeting, although representing less than a quorum, may from time
to time adjourn the meeting to some other day and hour, without notice other
than announcement at the meeting. The shareholders present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum. The vote of the
holders of a majority of the shares entitled to vote and thus represented at a
meeting at which a quorum is present shall be the act of the shareholders'
meeting, unless the vote of a greater number is required by law or by the
Articles of Incorporation. The chairman of the board shall preside at, and the
secretary shall keep the records of, each meeting of shareholders, and in the
absence of either, the duties shall be performed by any other officer authorized
by these Bylaws or any person appointed by resolution duly adopted at the
meeting.
SECTION III.7. VOTING AT MEETINGS. Each outstanding share shall be
entitled to one vote on each matter submitted to a vote at a meeting of
shareholders except to the extent that the Articles of Incorporation or the laws
of the State of Nevada provide otherwise.
SECTION III.8. PROXIES. A shareholder may vote either in person or by
proxy executed in writing by the shareholder, or by a duly authorized
attorney-in-fact. No proxy shall be valid after 11 months from the date of its
execution unless expressly provided therein to be irrevocable and unless
otherwise made irrevocable by law.
SECTION III.9. BALLOTING. Upon the demand of any shareholder, the vote
upon any question before the meeting shall be by ballot. At each meeting
inspectors of election may be appointed by the presiding officer of the meeting,
and at any meeting for the election of directors, inspectors shall be so
appointed on the demand of any shareholder present or represented by proxy and
entitled to vote in such election of directors. No director or candidate for
office of director shall be appointed as such inspector. The number of votes
cast by shares in the election of directors shall be recorded in the minutes.
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SECTION III.10. RECORD OF SHAREHOLDERS. The Corporation shall keep at
its principal business office, or the office of its transfer agent or
registrars, a record of its shareholders, giving the names and addresses of all
shareholders and the number and class of the shares held by each.
SECTION III.11. ACTION WITHOUT MEETING. Any action required by statute
to be taken at a meeting of the shareholders of the Corporation, or any action
which may be taken at a meeting of the shareholders, may be taken without a
meeting and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall be signed by the holder or holders of shares having
not less than the minimum number of votes that would be necessary to take action
at a meeting at which the holders of all shares entitled to vote on the action
were present and voted, and such consent shall have the same force and effect as
a vote of the shareholders. Any such signed consent, or a signed copy thereof,
shall be placed in the minute book of the Corporation.
ARTICLE IV
THE BOARD OF DIRECTORS
SECTION IV.1. NUMBER, QUALIFICATIONS AND TERM. The business and affairs
of the Corporation shall be managed and controlled by the Board of Directors;
and, subject to any restrictions imposed by law, by the Articles of
Incorporation, or by these Bylaws, the Board of Directors may exercise all the
powers of the Corporation. The Board of Directors shall, by resolution of the
Board of Directors, consist of at least one but not more than nine members. Such
number may be increased or decreased by amendment of these Bylaws, provided that
no decrease shall effect a shortening of the term of any incumbent director.
Directors need not be residents of Nevada or shareholders of the Corporation
absent provision to the contrary in the Articles of Incorporation or laws of the
State of Nevada. Except as otherwise provided in Section 4.3 of these Bylaws,
each position of the Board of Directors shall be filled by election at the
annual meeting of shareholders. Any such election shall be conducted in
accordance with Section 3.7 of these Bylaws. Each person elected a director
shall hold office, unless removed in accordance with Section 4.2 of these
Bylaws, until the next annual meeting of the shareholders and until his or her
successor shall have been duly elected and qualified.
SECTION IV.2. REMOVAL. Except as provided in the following sentence of
this Section 4.2, any director or the entire Board of Directors may be removed
from office, with or without cause, at any special meeting of shareholders by
the affirmative vote of a majority of the shares of the shareholders present in
person or by proxy and entitled to vote at such meeting, if notice of the
intention to act upon such matter shall have been given in the notice calling
such meeting. If the notice calling such meeting shall have so provided, the
vacancy caused by such removal may be filled at such meeting by the affirmative
vote of a majority in number of the shares of the shareholders present in person
or by proxy and entitled to vote.
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SECTION IV.3. VACANCIES. Any vacancy occurring in the Board of
Directors may be filled by the vote of a majority of the remaining directors
even if such remaining directors comprise less than a quorum of the Board of
Directors. A director elected to fill a vacancy shall be elected for the
unexpired term of the predecessor in office. Any position on the Board of
Directors to be filled by reason of an increase in the number of directors shall
be filled by election at an annual meeting of the shareholders, or at a special
meeting of shareholders duly called for such purpose.
SECTION IV.4. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held immediately following each annual meeting of
shareholders, at the place of such meeting, and at such other times and places
as the Board of Directors shall determine. No notice of any kind of such regular
meetings need to be given to either old or new members of the Board of
Directors.
SECTION IV.5. SPECIAL MEETINGS. Special meetings of the Board of
Directors shall be held at any time by call of the chairman of the board, the
president, the secretary or any of the directors. The secretary shall give
notice of each special meeting to each director at the usual business or
residence address by mail at least three days before the meeting or in person,
by telegraph, telephone, email, or telefax, or other communication method that
shall be available to the director, at least one day before such meeting. If
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail with postage thereon prepaid. Telephone notice is confirmed by
delivery to an answering machine, voice mail or other telephone number
identified by the Director as a number to which communications may be directed.
Except as otherwise provided by law, by the articles of incorporation, or by
these Bylaws, such notice need not specify the business to be transacted at, or
the purpose of, such meeting. No notice shall be necessary for any adjournment
of any meeting. The signing of a written waiver of notice of any special meeting
by the person or persons entitled to such notice, whether before or after the
time stated therein, shall be equivalent to the receiving of such notice.
Attendance of a director at a meeting shall also constitute a waiver of notice
of such meeting, except where a director attends a meeting for the express and
announced purpose of objecting to the transaction of any business on the ground
that the meeting is not lawfully called or convened.
SECTION IV.6. QUORUM. A majority of the number of directors fixed by
these Bylaws shall constitute a quorum for the transaction of business and the
act of not less than a majority of such quorum of the directors shall be
required in order to constitute the act of the Board of Directors, unless the
act of a greater number shall be required by law, by the articles of
incorporation or by these Bylaws.
SECTION IV.7. PROCEDURE AT MEETINGS. The Board of Directors, at each
regular meeting held immediately following the annual meeting of shareholders,
shall appoint one of their number as chairman of the Board of Directors. The
chairman of the Board of Directors shall preside at meetings of the board. In
his or her absence at any meeting, any officer authorized by these Bylaws or any
member of the board selected by the members present shall preside. The secretary
of the Corporation shall act as secretary. At meetings of the Board of
Directors, the business shall be transacted in such order as the board may from
time to time determine.
SECTION IV.8. PRESUMPTION OF ASSENT. Any director of the Corporation
who is present at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the action taken
unless his or her dissent shall be entered in the minutes of the meeting or
unless he or she shall file a written dissent to such action with the person
acting as the secretary of the meeting before the adjournment thereof or shall
forward such dissent by registered mail to the secretary of the Corporation
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a director who voted in favor of such action.
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SECTION IV.9. ACTION WITHOUT A MEETING. Any action required by statute
to be taken at a meeting of the directors of the Corporation, or which may be
taken at such meeting, may be taken without a meeting if a consent in writing,
by telephone, em-mail, or other confirmed communication, setting forth the
action so taken, shall be signed by each director entitled to vote at such
meeting, and such consent shall have the same force and effect as a unanimous
vote of the directors. Such signed consent, or a signed copy thereof sent by any
means of communication, shall be placed in the minute book of the Corporation.
SECTION IV.10. COMPENSATION. Directors as such shall not receive any
stated salary for their service, but by resolution of the Board of Directors, a
fixed sum and reimbursement for reasonable expenses of attendance, if any, may
be allowed for attendance at each regular or special meeting of the Board of
Directors or at any meeting of the executive committee of directors, if any, to
which such director may be elected in accordance with the following Section
4.11; but nothing herein shall preclude any director from serving the
Corporation in any other capacity or receiving compensation therefor.
SECTION IV.11. EXECUTIVE COMMITTEE. The Board of Directors, by
resolution adopted by a majority of the full Board of Directors, may designate
an executive committee, which committee shall consist of two or more of the
directors of the Corporation. Such executive committee may exercise such
authority of the Board of Directors in the business and affairs of the
Corporation as the Board of Directors may, by resolution duly adopted, delegate
to it except as prohibited by law. The designation of such committee and the
delegation thereto of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility imposed by law. Any
member of the executive committee may be removed by the Board of Directors. The
executive committee shall keep regular minutes of its proceedings and report the
same to the Board of Directors when required. The minutes of the proceedings of
the executive committee shall be placed in the minute book of the Corporation.
Members of the executive committee shall receive such compensation as may be
approved by the Board of Directors and will be reimbursed for reasonable
expenses actually incurred by reason of membership on the executive committee.
SECTION IV.12. OTHER COMMITTEES. The Board of Directors, by resolution
adopted by a majority of the full Board of Directors, may appoint one or more
committees of two or more directors each. Such committees may exercise such
authority of the Board of Directors in the business and affairs of the
Corporation as the Board of Directors may, by resolution duly adopted, delegate,
except as prohibited b law. The designation of any committee and the delegation
thereto of authority shall not operate to relieve the Board of Directors, or any
member thereof, of any responsibility imposed on it or the director by law. Any
member of a committee may be removed at any time by the Board of Directors.
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ARTICLE V
OFFICERS' AND DIRECTORS' SERVICES,
CONFLICTING INTERESTS, INDEMNIFICATION AND INSURANCE
SECTION V.1. SERVICES. No director and, unless otherwise determined by
the Board of Directors, no officer of the Corporation, shall be required to
devote his or her time or any particular portion of his or her time or render
services or any particular services exclusively to the Corporation. Every
director and, unless otherwise determined by the Board of Directors, every
officer, of the Corporation shall be entirely free to engage, participate and
invest in any and all businesses, enterprises and activities, either similar or
dissimilar to the business, enterprise and activities of the Corporation,
without breach of duty to the Corporation or to its shareholders and without
accountability or liability to the Corporation or to its shareholders.
Every director and, unless otherwise determined by the Board of
Directors, every officer, of the Corporation shall, respectively, be entirely
free to act for, serve and represent any other corporation, any entity or any
person, in any capacity, and be or become a director or officer, or both, of any
other corporation or any entity, irrespective of whether or not the business,
purposes, enterprises and activities, or any of them, thereof be similar of
dissimilar to the business, purposes, enterprises and activities, or any of
them, of the Corporation, without breach of duty to the Corporation or to its
shareholders and without accountability or liability of any character or
description to the Corporation or to its shareholders.
SECTION V.2. DIRECTORS' AND OFFICERS' INTERESTS IN CONTRACTS. No
contract or other transaction between the Corporation and one or more of its
directors of officers, or between the Corporation and any firm or partnership of
which one or more of its directors or officers are members or employees or in
which they are otherwise interested, or between the Corporation and any
corporation or association or other entity in which one or more of the
corporation's directors or officers are shareholders, members, directors,
officers or employees or in which they are otherwise interested, shall be void
or voidable by reason of or as a result of such connection with or holding an
office as a director or officer of the Corporation or such interest in or in
connection with such other firm, partnership, corporation, association or other
entity, notwithstanding the presence of such director or officer at the meeting
of the Board of Directors of the Corporation which acts upon or in reference to
any such contract or other transaction, and notwithstanding his or her
participation in such action, if such contract or other transaction is fair,
just and beneficial to the Corporation, and if (i) the fact of such interest
shall be disclosed or known to the Board of Directors and the Board of Directors
shall authorize, approve or ratify such contract or other transaction by a vote
of a majority of the directors present, such interested director to be counted
neither in determining whether a quorum is present, nor in calculating the
majority necessary to carry such vote, or if (ii) the fact of such interest
shall be disclosed or known to the shareholders and the shareholders either by
written consent or by vote of holders of record of a majority of all the
outstanding shares of stock entitled to vote, shall authorize, approve or ratify
such contract or other transaction; nor shall any director or officer by
responsible to, or liable to account to, the Corporation for any profits
realized by or from or through any such contract or other transaction of the
Corporation so authorized, ratified or approved, by reason of such interest or
his or her being or having been a director or officer, or both, of the
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Corporation. Nothing herein contained shall create responsibility or liability
in or in connection with any such event or prevent the authorization,
ratification or approval of such contracts or other transactions in any other
manner permitted by law or by statute. This Section shall not be construed to
invalidate any contract or other transaction which would otherwise be valid
under the common or statutory law applicable thereto.
SECTION V.3. RELIANCE UPON BOOKS, REPORTS AND RECORDS. Neither a
director nor a member of any committee shall be liable if, in the exercise of
ordinary care, he or she relied and acted in good faith upon written financial
statements of the Corporation represented to be correct by the President or by
the officer of the Corporation having charge of its books of account, or
certified by an independent public or certified public accountant or firm of
such accountants fairly to reflect the financial condition of the Corporation,
nor shall he or she be so liable if, in the exercise of ordinary care and in
good faith, in determining the amount available for payment of a dividend or
other distribution, he or she considered the assets of the Corporation to be of
their book value.
SECTION V.4. NON-LIABILITY OF DIRECTORS AND OFFICERS IN CERTAIN CASES.
No director, officer or member of a committee shall be liable for his or her
acts as such if he or she is excused from liability under any present or future
provision of the Nevada Revised Statutes. The Corporation shall indemnify its
officers and directors to the fullest extent permitted by law under the Nevada
Revised Statutes 78.751 and as provided herein.
SECTION V.5. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND
AGENTS.
A. As used in this section:
(1) "Corporation" includes any domestic or foreign
predecessor entity of the Corporation in a merger, consolidation or other
transaction in which the liabilities of the predecessor are transferred to the
Corporation by operation of law and in any other transaction in which the
Corporation assumes the liabilities of the predecessor but does not specifically
exclude liabilities that are the subject matter of this Section 5.
(2) "Director" means any person who is or was a
director of the Corporation any person who, while a director of the Corporation,
is or was serving at the request of the Corporation as a director, officer,
partner, trustee, employee or agent of another foreign or domestic corporation,
partnership, joint venture, sole proprietorship, trust, employee benefit plan or
other enterprise.
(3) "Expenses" include court costs and attorneys'
fees.
(4) "Official Capacity" means:
(a) when used with respect to a Director,
the office of director in the Corporation, and
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(b) when used with respect to a person
other than a Director, the elective or appointive office in the Corporation
held by the officer or the employment or agency relationship undertaken by the
employee or agent in behalf of the Corporation, but in each case does not
include service for any other foreign or domestic corporation or any
partnership, joint venture, sole proprietorship, trust, employee benefit plan
or other enterprise.
(5) "Proceeding" means any threatened, pending,
or complete action, suit or proceeding, whether civil, criminal, administrative
or investigative, any appeal in such an action, suit or proceeding, and any
inquiry or investigation that could lead to such an action, suit or proceeding.
B. The Corporation may indemnify any person who was, is or is
threatened to be made a named defendant or respondent in any Proceeding because
he or she is or was a Director only if it is determined in accordance with
paragraph (F) of this Section 5 that the person:
(1) conducted himself or herself in good faith;
(2) reasonably believed:
(a) in the case of conduct in his or her
Official Capacity as a Director of the Corporation , that his or her conduct was
in the Corporation's best interests, and
(b) in all other cases, that his or her
conduct was at least not opposed to the Corporation's best interests; and
(3) in the case of any criminal Proceeding, had
no reasonable cause to believe his or her conduct was unlawful.
C. A Director shall not be indemnified under subsection 5(B)
for obligations resulting from a Proceeding:
(1) in which the person is found liable on the
basis that personal benefit was improperly received by him, whether or not the
benefit resulted from an action taken in the person's Official Capacity; or
(2) in which the person is found liable to the
Corporation.
D. The termination of any Proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent
shall not, of itself, be determinative that the person did not meet the
requisite standard of conduct set forth in subsection 5(B).
E. A person may be indemnified under Section 5(B) against
judgments, penalties (including excise and similar taxes), fines, settlements
and reasonable Expenses actually incurred by the person in connection with the
Proceeding; but if the Proceeding was brought by or in the behalf of the
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Corporation, indemnification shall be limited to reasonable Expenses actually
incurred by the person in connection with the Proceeding.
F. No indemnification under subsection 5(B) shall be made by
the Corporation unless authorized in the specific case after a determination has
been made that the Director has met the standard of conduct set forth in
subsection 5(B). Such determination shall be made:
(1) by the Board of Directors by a majority
vote of a quorum consisting of directors who at the time of the vote are not
named defendants or respondents in the Proceeding;
(2) if such a quorum cannot be obtained, then
by a majority vote of a committee of the Board of Directors, designated to act
in the matter by a majority vote of the full Board of Directors ( in which vote
directors who are named defendants or respondents may participate), which
committee shall consist solely of two or more directors who at the time of the
vote are not named defendants or respondents to the Proceeding; or
(3) by special legal counsel, selected by the
Board of Directors or a committee thereof by vote as set forth in clauses (1) or
(2) of this subsection 5(F), or, if the requisite quorum of the full Board of
Directors cannot be obtained therefor and such a committee cannot be
established, by a majority vote of the full Board of Directors (in which vote
directors who are named defendants or respondents may participate); or
(4) by the shareholders in a vote that excludes
the shares held by directors who are named defendants or respondents in the
Proceeding.
G. Authorization of indemnification and determination as to
reasonableness of Expenses shall be made in the same manner as the determination
that indemnification is permissible, except that if the determination that
indemnification is permissible is made by special legal counsel, authorization
of indemnification and determination as to reasonableness of Expenses shall be
made in a manner specified in clause (3) in subsection 5(F) for the selection of
such counsel.
H. A Director who has been wholly successful, on the merits or
otherwise, in the defense of any Proceeding in which he or she is a party
because he or she is a Director shall be indemnified by the Corporation against
reasonable Expenses incurred by the Director in connection with the Proceeding.
I. If a court of competent jurisdiction determines that a
Director is fairly and reasonably entitled to indemnification in view of all the
relevant circumstances, whether or not he or she has met the standard of conduct
set forth in subsection 5(B) or has been adjudged liable in the circumstances
described in subsection 5(C), the court may order such indemnification as the
court determines is proper and equitable. The court shall limit indemnification
to reasonable Expenses if the Proceeding is brought by or in behalf of the
Corporation or if the Director is found liable on the basis of circumstances
described in subsection 5.5(C)(1); whether or not the benefit resulted from an
action taken in the person's Official Capacity.
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J. Reasonable Expenses incurred by a Director who was, is, or
is threatened to be made a named defendant or respondent to a Proceeding may be
paid or reimbursed by the Corporation in advance of the final disposition of
such Proceeding after:
(1) receipt by the Corporation of a written
affirmation by the Director of his or her good faith belief that he or she
has met the standard of conduct necessary for indemnification by the
Corporation as authorized in this Section 5, and a written undertaking by
or on behalf of the Director to repay the amount paid or reimbursed if it shall
ultimately be determined that he or she has not met such standard of conduct;
and
(2) a determination that the facts then known
to those making the determination would not preclude indemnification under this
Section 5.
K. The written undertaking required by subsection (J) must be
an unlimited general obligation of the Director but need not be secured. It may
be accepted without reference to financial ability to make repayment.
Determinations and authorizations of payments under subsection (J) shall be made
in the manner specified in subsection (F).
L. The indemnification provided by this Section 5 shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any statute, Bylaw, agreement, insurance policy, vote of shareholders or
disinterested directors or otherwise, both as to action in their Official
Capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a Director, officer, employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person; provided, however, no provision for the
Corporation to indemnify or to advance Expenses to a Director who was, is or is
threatened to be made a named defendant or respondent to a Proceeding, whether
contained in the Articles of Incorporation, these Bylaws, a resolution of
shareholders or directors, an agreement or otherwise (except as contemplated by
subsection (Q)), shall be valid unless consistent with this section or, to the
extent that indemnity hereunder is limited by the Articles of Incorporation,
consistent therewith.
M. Nothing contained in this Section shall limit the
Corporation's power to pay or reimburse Expenses incurred by a Director in
connection with the appearance as a witness in a Proceeding at a time when he or
she is not a named defendant or respondent in the Proceeding.
N. Unless limited by the Articles of Incorporation of
the Corporation,
(1) an officer of the Corporation shall be
indemnified as and to the same extent provided in subsections (H) and (I)
for a Director and shall be entitled to the same extent as a Director to seek
indemnification pursuant to the provisions of those subsections; and
(2) the Corporation may indemnify and
advance Expenses to an officer, employee or agent of the Corporation to the
same extent that it may indemnify and advance Expenses to Directors pursuant to
this Section 5.
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O. The Corporation may indemnify and advance Expenses to
nominees and designees who are not or were not officers, employees, or agents of
the Corporation who are or were serving at the request of the Corporation as a
director, officer, partner, venturer, proprietor, trustee, employee, agent or
similar functionary of another foreign or domestic corporation, partnership,
joint venture, sole proprietorship, trust, other enterprise, or employee benefit
plan to the same extent that it may indemnify and advance expenses to Directors
under this Section 5.
P. The Corporation, in addition, may indemnify and advance
Expenses to an officer, employee or agent or person who is identified by
subsection 5(O) as a nominee or designee and who is not a Director to such
further extent, consistent with law, as may be provided by the Articles of
Incorporation of the Corporation, these Bylaws, general or specific action of
the Board of Directors, or contract or as permitted or required by common law.
Q. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or who is or was serving at the request of the Corporation as a
director, officer, partner, venturer, proprietor, trustee, employee, agent or
similar functionary of another foreign or domestic corporation, partnership,
joint venture, sole proprietorship, trust, other enterprise or employee benefit
plan, against any liability asserted against or incurred by him or her in any
such capacity or arising out of the status as such a person, whether or not the
Corporation would have the power to indemnify such party against such liability
under the provisions of the Nevada Revised Statutes or this Section 5.
R. Any indemnification of, or advance of Expenses to a
Director in accordance with this Section shall be reported in writing to the
shareholders with or before the notice or waiver of notice of the next
shareholders' meeting or with or before the next meeting pursuant to the Nevada
Revised Statutes, and in any case, within the 12-month period immediately
following the date of the indemnification or advance.
S. For purposes of this Section 5, the Corporation shall be
deemed to have requested a Director to serve an employee benefit plan whenever
the performance of the duties for the Corporation also imposes duties on, or
otherwise involves services by, the Director to the plan or participants or
beneficiaries of the plan. Excise taxes assessed on a Director with respect to
an employee benefit plan pursuant to applicable law shall be deemed "fines."
Action taken or omitted by the Director with respect to an employee benefit plan
in the performance of the duties for a purpose reasonably believed by the
Director to be in the interest of the participants and beneficiaries of the plan
shall be deemed to be for a purpose which is not opposed to the best interests
of the Corporation.
ARTICLE VI
OFFICERS
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SECTION VI.1. NUMBER. The officers of the Corporation shall consist of
a president and a secretary, and may also include one or more vice presidents, a
treasurer and such other officers and assistant officers and agents as may be
deemed necessary or desirable. Officers shall be elected or appointed by the
Board of Directors. Any two or more offices may be held by the same person. In
its discretion, the Board of Directors may leave unfilled any office except
those of president and secretary.
SECTION VI.2. ELECTION; TERM; QUALIFICATION. Officers shall be chosen
by the Board of Directors following the annual shareholders' meeting. Each
officer shall hold office until a successor has been chosen and qualified, or
until his or her death, resignation, or removal.
SECTION VI.3. REMOVAL. Any officer or agent elected or appointed by the
Board of Directors may be removed by the Board of Directors whenever in its
judgment the best interest of the Corporation will be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed. Election or appointment of an officer or agent shall not of itself
create any contract rights.
SECTION VI.4. VACANCIES. Any vacancy in any office for any cause
may be filled by the Board of Directors at any meeting.
SECTION VI.5. DUTIES. The officers of the Corporation shall have such
powers and duties, except as modified by the Board of Directors, as generally
pertain to their offices, respectively, as well as such powers and duties as
from time to time shall be conferred by the Board of Directors and by these
Bylaws.
SECTION VI.6. THE PRESIDENT. The president shall have general direction
of the affairs of the Corporation and general supervision over its several
officers, subject however, to the control of the Board of Directors. The
president shall preside at each annual meeting, and, from time to time, report
to the shareholders and to the Board of Directors all matter within his or her
knowledge which, in his or her opinion, the interest of the Corporation may
require to be brought to the notice of such persons. The president may sign,
with the secretary or an assistant secretary, any or all certificates of stock
of the Corporation. The president shall sign and execute in the name of the
Corporation, without requirement of attestation by the secretary, (i) all
contracts or other instruments authorized by the Board of Directors, and (ii)
all contracts or instruments in the usual and regular course of business,
pursuant to Section 6.2 hereof, except in cases when the signing and execution
thereof shall be expressly delegated or permitted by the board or by these
Bylaws to some other officer or agent of the Corporation; and, in general, shall
perform all duties incident to the office of president, and such other duties as
from time to time may be assigned to the president by the Board of Directors or
as are prescribed by these Bylaws.
SECTION VI.7. THE VICE PRESIDENT. At the request of the president, or
in the absence or disability of the president, the vice presidents, in the order
of their election, shall perform the duties of the president, and, when so
acting, shall have all the powers of, and be subject to all restrictions upon,
the president. Any action taken by a vice president in the performance of the
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duties of the president shall be conclusive evidence of the absence or inability
to act of the president at the time such action was taken. The vice presidents
shall perform such other duties as may, from time to time, be assigned to them
by the Board of Directors or the president. A vice president may sign, with the
secretary or an assistant secretary, certificates of stock of the Corporation.
SECTION VI.8. SECRETARY. The secretary shall keep the minutes of all
minutes of the shareholders, of the Board of Directors, and of the executive
committee, if any, of the Board of Directors, in one or more books provided for
such purpose and shall see that all notices are duly given in accordance with
the provisions of these Bylaws or as required by law. The secretary shall be
custodian of the corporate records and of the seal (if any) of the Corporation
and see, if the Corporation has a seal, that the seal of the Corporation is
affixed to all documents the execution of which on behalf of the Corporation
under its seal is duly authorized; shall have general charge of the stock
certificate books, transfer books and storage ledgers, and such other books and
papers of the Corporation as the Board of Directors may direct, all of which
shall, at all reasonable times, be open to the examination of any director, upon
application at the office of the Corporation during business hours; and in
general shall perform all duties and exercise all powers incident to the office
of the secretary and such other duties and powers as the Board of Directors or
the president from time to time may assign to or confer on the secretary.
SECTION VI.9. TREASURER. The treasurer shall keep complete and accurate
records of account, showing at all times the financial condition of the
Corporation. The treasurer shall be the legal custodian of all money, notes,
securities and other valuables which may from time to time come into the
possession of the Corporation. The treasurer shall furnish at meetings of the
Board of Directors, or whenever requested, a statement of the financial
condition of the Corporation, and shall perform such other duties as these
Bylaws may require or the Board of Directors may prescribe.
SECTION VI.10. EXECUTIVE TITLES AND ASSISTANT OFFICERS. The Board of
Directors may designate titles or positions for any executive officer, such as
Chief Executive Officer (CEO), Chief Financial Officer (CFO), and Chief
Information Officer (CIO). Any assistant secretary or assistant treasurer
appointed by the Board of Directors shall have power to perform, and shall
perform, all duties incumbent upon the secretary or treasurer of the
Corporation, respectively, subject to the general direction of such respective
officers, and shall perform such other duties as these Bylaws may require or the
Board of Directors may prescribe.
SECTION VI.11. SALARIES. The salaries or other compensation of the
officers shall be fixed 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 or she is also a director of the Corporation.
SECTION VI.12. BONDS OF OFFICERS. The Board of Directors may secure the
fidelity of any officer of the Corporation by bond or otherwise, on such terms
and with such sureties, conditions, penalties or securities as shall be deemed
proper by the Board of Directors.
SECTION VI.13. DELEGATION. The Board of Directors may delegate
temporarily the powers and duties of any officer of the Corporation, in case of
his or her absence or for any other reason, to any other officer, and may
authorize the delegation by any officer of the Corporation of any of his or her
powers and duties to any agent or employee, subject to the general supervision
of such officer.
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ARTICLE VII
MISCELLANEOUS
SECTION VII.1. DIVIDENDS. Dividends on the outstanding shares of the
Corporation, subject to the provisions of the articles of incorporation, if any,
may be declared by the Board of Directors at any regular or special meeting,
pursuant to law. Dividends may be paid by the Corporation in cash, in property,
or in the Corporations own shares, but only out of the unreserved and restricted
earned surplus of the Corporation, except as otherwise allowed by law.
Subject to limitations upon the authority of the Board of Directors
imposed by law or by the articles of incorporation, the declaration of and
provision for payment of dividends shall be at the discretion of the Board of
Directors.
SECTION VII.2. CONTRACTS. The president shall have the power and
authority to execute, on behalf of the Corporation, contracts or instruments in
the usual and regular course of business, and in addition the Board of Directors
may authorize any officer or officers, agent or agents, of the Corporation to
enter into any contract or execute and deliver any instrument in the name of and
on behalf of the Corporation, and such authority may be general or confined to
specific instances. Unless so authorized by the Board of Directors or by these
Bylaws, no officer, agent or employee shall have any power or authority to bind
the Corporation by any contract or engagement, or to pledge its credit or to
render it pecuniarily liable for any purpose or in any amount.
SECTION VII.3. CHECKS, DRAFTS, ETC. All checks, drafts, or other orders
for the payment of money, notes, or other evidences of indebtedness issued in
the name of the Corporation shall be signed by such officers or employees of the
Corporation as shall from time to time be authorized pursuant to these Bylaws or
by resolution of the Board of Directors.
SECTION VII.4. DEPOSITORIES. All funds of the Corporation shall be
deposited from time to time to the credit of the Corporation in such banks or
other depositories as the Board of Directors may from time to time designate,
and upon such terms and conditions as shall be fixed by the Board of Directors.
The Board of Directors may from time to time authorize the opening and
maintaining within any such depository as it may designate, of general and
special account, and may make such special rules and regulations with respect
thereto as it may deem expedient.
SECTION VII.5. ENDORSEMENT OF STOCK CERTIFICATES. Subject to the
specific directions of the Board of Directors, any share or shares of stock
issued by any corporation and owned by the Corporation, including reacquired
shares of the Corporation's own stock, may, for sale or transfer, be endorsed in
the name of the Corporation by the president or any vice president; and such
endorsement may be attested or witnessed by the secretary or any assistant
secretary either with or without the affixing thereto of the corporate seal.
SECTION VII.6. CORPORATE SEAL. The corporate seal, if any, shall be in
such form as the Board of Directors shall approve, and such seal, or a facsimile
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thereof, may be impressed on, affixed to, or in any manner reproduced upon,
instruments of any nature required to be executed by officers of the
Corporation.
SECTION VII.7. BOOKS AND RECORDS. The Corporation shall keep correct
and complete books and records of account and shall keep minutes of the
proceedings of its shareholders and Board of Directors, and shall keep at its
registered office or principal place of business, or at the office of its
transfer agent or registrar, a record of its shareholders, giving the names and
addresses of all shareholders and the number and class of the shares held by
each.
SECTION VII.8. RESIGNATIONS. Any director or officer may resign at any
time. Such resignations shall be made in writing and shall take effect at the
time specified therein, or, if no time is specified, at the time of its receipt
by the president or secretary. The acceptance of a resignation shall not be
necessary to make it effective, unless expressly so provided in the resignation.
SECTION VII.9. LEGENDS. There shall be typed across the face of
each stock certificate issued by the Corporation to any shareholder or presently
owned by any shareholder a legend similar to the following:
NOTICE: THESE SHARES ARE SUBJECT TO RESTRICTIONS ON TRANSFER. REFER TO
THE BACK OF THIS CERTIFICATE AND TO THE SHAREHOLDERS AGREEMENT.
There shall be typed across the back of each such Stock Certificate the
following, if no registration is in effect:
THE SHARES OF STOCK REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
ANY U.S. OR STATE SECURITIES LAWS AND MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF WITHOUT
APPROPRIATE REGISTRATION OR AN EXEMPTION FROM REGISTRATION.
SECTION VII.10. MEETINGS BY TELEPHONE. Subject to the provisions
required or permitted by these Bylaws or the laws of the State of Nevada for
notice of meetings, shareholders, members of the Board of Directors, or members
of any committee designated by the Board of Directors may participate in and
hold any meeting required or permitted under these Bylaws by telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other. Participation in a meeting pursuant to this
section shall constitute presence in person at such a meeting, except where a
person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
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ARTICLE VIII
AMENDMENTS
SECTION VIII.1. AMENDMENTS. These Bylaws may be altered, amended or
repealed, or new Bylaws may be adopted, by a majority or the Board of Directors
at any duly held meeting of directors or by the holders of a majority of the
shares represented at any duly held meeting of shareholders; provided that
notice of such proposed action shall have been contained in the notice of any
such meeting.
CERTIFICATE OF SECRETARY
The undersigned, being the secretary of E-Pawn.com, Inc., hereby
certifies that the foregoing Bylaws were duly adopted by the initial directors
of said corporation effective on _______________, 2000.
IN WITNESS WHEREOF, I have signed this certification on this _____ day
of _______________, 2000.
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Secretary
