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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
NATURAL WAY TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
NEVADA 87-0394313
(State of incorporation or organization) (IRS Employer Identification No.)
ROOM 3105, 31/F, UNIVERSAL TRADE CENTRE
3-5 A ARBUTHNOT ROAD, CENTRAL, HONG KONG
(Address of principal executive offices) (Zip Code)
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A(c)(1) please check the
following box. / /
If this Form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A(c)(2) please check the following box. / /
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
-------------------- ------------------------------
None None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $.001 par value
-----------------------------
(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
COMMON STOCK
GENERAL. The Company has 50,000,000 authorized shares of common stock,
$0.001 par value (the "Common Stock"), 8,200,000 of which were issued and
outstanding at September 1, 1996. All shares of Common Stock currently
outstanding are validly issued, fully paid and non-assessable.
VOTING RIGHTS. Each share of Common Stock entitles the holder thereof to
one vote, either in person or by proxy, at meetings of shareholders. The
holders are not permitted to vote their shares cumulatively. The voting rights
of the holders of Common Stock are subject to the rights of the outstanding
Series B Preferred Shares which, as a class, is entitled to thirty percent
voting control of the Company. Accordingly, the holders of Common Stock and
Preferred Stock holding, in the aggregate, more than fifty percent (50%) of the
total voting rights can elect all of the Directors of the Company.
DIVIDEND POLICY. All shares of Common Stock are entitled to participate
ratably in dividends when and as declared by the Company's Board of Directors
out of the funds legally available therefor and subject to the rights, if any,
of the holders of outstanding shares of preferred stock. Any such dividends may
be paid in cash, property or additional shares of Common Stock. The Company has
not paid any dividends since its inception and presently anticipates that all
earnings, if any, will be retained for development of the Company's business and
that no dividends on the shares of Common Stock will be declared in the
foreseeable future. Any future dividends will be subject to the discretion of
the Company's Board of Directors and will depend upon, among other things,
future earnings, the operating and financial condition of the Company, its
capital requirements, general business conditions and other pertinent facts.
Therefore there can be no assurance that any dividends on the Common Stock will
be paid in the future.
MISCELLANEOUS RIGHTS AND PROVISIONS. Holders of Common Stock have no
preemptive or other subscription rights, conversion rights, redemption or
sinking fund provisions. In the event of the dissolution, whether voluntary or
involuntary, of the Company, each share of Common Stock is entitled to share
ratably in any assets available for distribution to holders of the equity of the
Company after satisfaction of all liabilities and payment of the applicable
liquidation preference of any outstanding shares of Preferred Stock.
PREFERRED STOCK
The Company has 5,000,000 authorized shares of preferred stock, $0.001 par
value. The Board of Directors has the authority, without action by the
shareholders, to create one or more series of preferred stock and to determine
the dividend rights, dividend rate, rights and terms of redemption, liquidation
preferences, sinking fund terms, conversion and voting rights of any such
series, the number of shares constituting any such series and the designation
thereof and the price therefor.
SERIES A PREFERRED SHARES. As of September 1, 1996, 5,600 shares of Series
A preferred stock (the "Series A Preferred Shares") were issued and outstanding.
The Series A Preferred Shares have no voting rights, a liquidation preference of
$1,000 per share and are convertible into Common Stock at any time on or before
December 31, 1997 at the lesser of the market price of the Common Stock or $1.00
per share. Except the foregoing, holders of the Series A Preferred Shares have
no preferences or rights in excess of those generally available to holders of
Common Stock. The Company may redeem the Series A Preferred Shares after
December 31, 1997 at $1000 per share plus accumulated dividends.
SERIES B PREFERRED SHARES. As of September 1, 1996, 100,000 shares of
Series B preferred stock (the "Series B Preferred Shares") were issued and
outstanding. The Series B Preferred Shares entitle the holders thereof, as a
class, to thirty percent voting control of the Company in all matters voted on
by shareholders and a liquidation preference of $.001 per share. Except for the
foregoing, the holders of the Series B preferred
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shares have no preferences or rights in excess of those generally available
to the holders of Common Stock. Except to the extent declared by the Board of
Directors from time to time, if ever, no dividends are payable with respect
to the Series B Preferred Shares.
ITEM 2. EXHIBITS
<TABLE>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBIT PAGE
------ ---------------------- ------------
<S> <C> <C>
1.1 Specimen Common Stock Certificate. . . . . . . . . . . . . . . . .
2.1 Articles of Incorporation, as amended, of Natural Way
Technologies, Inc. . . . . . . . . . . . . . . . . . . . . . . . .
2.2 Certificate of Designation, Preferences and Rights of Series A
Preferred Stock. . . . . . . . . . . . . . . . . . . . . . . . . .
2.3 Certificate of Designation, Preferences and Rights of Series B
Preferred Stock. . . . . . . . . . . . . . . . . . . . . . . . . .
2.4 Bylaws, as amended, of Natural Way Technologies, Inc. . . . . . .
</TABLE>
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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, thereto duly authorized.
NATURAL WAY TECHNOLOGIES, INC.
Dated: October 2, 1996 By: /s/ Yiu Yat Hung
-------------------------------
YIU YAT HUNG
Chairman
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NUMBER SHARES
NATURAL WAY TECHNOLOGIES, INC.
A Nevada Corporation
AUTHORIZED SHARES: 50,000,000
PAR VALUE $.001
THIS CERTIFIES THAT
IS THE RECORD HOLDER OF
NATURAL WAY TECHNOLOGIES, INC.
SHARES TRANSFERABLE ON THE BOOKS OF THE CORPORATION IN PERSON OR BY DULY
AUTHORIZED ATTORNEY UPON SURRENDER OF THIS CERTIFICATE PROPERLY ENDORSED.
WITNESS THE SIGNATURES OF THE DULY AUTHORIZED OFFICERS OF THE CORPORATION.
DATED:
----------------------------- ------------------------------
SECRETARY PRESIDENT
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NOTICE: Signatures must be guaranteed by a firm which is a participant in the
Medallion Guarantee program. The following abbreviations, when used
in the inscription on the face of this certificate, shall be construed
as though they were written out in full according to applicable laws
or regulation:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts
survivorship and not as tenants to Minors Act.......
in common (State)
Additional abbreviations may also be used though not in the above list.
For Value Received, _________________________ hereby sell, assign and
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- - --------------------------------------
- - --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
shares
- - --------------------------------------------------------------------------
of the capital stock represented by the within certificate, and do hereby
irrevocably constitute and appoint __________________________________________
Attorney to transfer the said stock on the books of the within named
Corporation with full power of substitution in the premises.
Dated
-----------------------
------------------------------------
NOTICE: THE SIGNATURES TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER.
<PAGE>
RESTATED ARTICLES OF INCORPORATION
OF
NATURAL WAY TECHNOLOGIES, INC.
We, the undersigned President and Secretary of Natural Way Technologies,
Inc. do hereby certify:
That the board of directors of said corporation at a meeting duly convened
on May 13, 1996, adopted resolutions to amend and restate the Articles of
Incorporation, and
That the number of shares of the corporation outstanding and entitled to
vote on an amendment to the Articles of Incorporation is 1,000,000; that
said amendments have been consented to and approved by a majority vote of
the stockholders holding at least a majority of each class of stock
outstanding and entitled to vote thereon, and
That the text of Articles of Incorporation as amended to date reads as
herein set forth in full:
ARTICLE I
NAME
The name of the corporation (hereinafter called "Corporation") is NATURAL
WAY TECHNOLOGIES, INC.
ARTICLE II
PERIOD OF DURATION
The period of duration of the Corporation is perpetual.
ARTICLE III
PURPOSES AND POWERS
The purpose for which this Corporation is organized is to engage in the
business of investing in investments of all forms and nature and to engage in
any and all other lawful business.
ARTICLE IV
CAPITALIZATION
The total number of shares of stock which the Corporation shall have the
authority to issue is fifty five million (55,000,000) shares, consisting of
fifty million (50,000,000) shares of Common Stock having a par value of $.001
per share and five million (5,000,000) shares of Preferred Stock having a par
value of $.001 per share.
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A. Preferred Stock
The Board of Directors is authorized, subject to the limitations
prescribed by law and the provisions of this Article, to provide for
the issuance of the shares of Preferred Stock in series, and by filing
a certificate pursuant to the applicable law of the State of Nevada,
to establish from time to time the number of shares to be included in
each such series and to fix the designation, powers, preferences and
rights of the shares of each such series and the qualifications,
limitations or restrictions thereof.
1. The authority of the Board with respect to each series shall
include, but not be limited to, determination of the following:
a. The number of shares constituting that series and the
distinctive designation of that series;
b. The dividend rate on the shares of that series, whether
dividends shall be cumulative, and if so, from which date or
dates, and the relative rights of priority, if any, of
payment of dividends on shares of that series;
c. Whether that series shall have voting rights, in addition to
the voting rights provided by law, and if so, the terms of
such voting rights;
d. Whether that series shall have conversion privileges and, if
so, the terms and conditions of such conversion, including
provision for adjustment of the conversion rate in such
events as the Board of Directors shall determine;
e. Whether or not the shares of that series shall be redeemable
and, if so, the terms and conditions of such redemption,
including the date or dates upon or after which they shall
be redeemable and the amount per share payable in case of
redemption, which amount may vary under different conditions
and at different redemption dates;
f. Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series and, if so,
the terms and amount of such sinking fund;
g. The rights of the shares of that series in the event of
voluntary or involuntary liquidation,
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dissolution or winding up of the Corporation, and the
relative rights of priority, if any, of payment of shares
of that series; and
h. Any other relative rights, preferences and limitations of
that series.
2. Dividends on outstanding shares of Preferred Stock shall be paid
or declared and set apart for payment, before any dividends shall
be paid or declared and set apart for payment on Common Stock
with respect to the same dividend period.
3. If upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the assets available for
distribution to holders of shares of Preferred Stock of all
series shall be insufficient to pay such holders the full
preferential amount to which they are entitled, then such assets
shall be distributed ratably among the shares of all series of
Preferred Stock in accordance with the respective preferential
amounts (including unpaid cumulative dividends, if any) payable
with respect thereto.
4. Unless otherwise provided in any resolution of the Board of
Directors providing for the issuance of any particular series of
Preferred Stock, no holder of Preferred Stock shall have any pre-
emptive right as such holder to subscribe for, purchase or
receive any part of any new or additional issue of capital stock
of any class or series, including unissued and treasury stock, or
obligations or other securities convertible into or exchangeable
for capital stock of any class or series, or warrants or other
instruments evidencing rights or options to subscribe for,
purchase or receive any capital stock of any class or series,
whether now or hereafter authorized and whether issued for cash
or other consideration or by way of dividend.
B. Common Stock
1. Subject to the prior and superior rights of the Preferred Stock
and on the conditions set forth in the foregoing parts of this
Article or in any resolution of the Board of Directors providing
for the issuance of any particular series of Preferred Stock, and
not otherwise, such dividends (payable in cash, stock or
otherwise) as may be determined by the Board of Directors may be
declared and paid on the Common Stock from time to time out of
any funds legally available therefor.
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2. Except as otherwise provided by law, by this Certificate of
Incorporation or by the resolution or resolutions of the Board of
Directors providing for the issue of any series of the Preferred
Stock, the Common Stock shall have the exclusive right to vote
for the election of directors and for all other purposes, each
holder of the Common Stock being entitled to one vote for each
share held.
3. Upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, and after the
holders of the Preferred Stock of each series shall have been
paid in full the amount to which they respectively shall be
entitled, or a sum sufficient for such payments in assets of the
Corporation shall be distributed pro rata to the holders of the
Common Stock in accordance with their respective rights and
interests, to the exclusion of the holders of the Preferred
Stock.
ARTICLE V
REGISTERED OFFICE AND AGENT
The address of the corporation's current registered office is 502 E. John
Street, Room E., Carson City, Nevada 89706; the name of the corporation's
current registered agent at such address is The Prentice-Hall Corporation
System, Nevada, Inc.
ARTICLE VI
DIRECTORS
The Corporation shall be governed by a Board of Directors consisting of
such number of directors as shall be fixed the Corporation's bylaws. The number
of directors constituting the current board of directors of the corporation is
two and the names and addresses of the directors are as follows:
NAME ADDRESS
---- -------
Gregory W. Boss 1174 South Foothill Drive #416
Salt Lake City, Utah 84108
Natalie P. Boss 1174 South Foothill Drive #416
Salt Lake City, Utah 84108
ARTICLE VII
DENIAL OF PREEMPTIVE RIGHTS
There shall be no preemptive right to acquire unissued and/or treasury
shares of the stock of the Corporation.
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ARTICLE VIII
LIABILITY OF OFFICERS AND DIRECTORS
A director or officer of the Corporation shall not be liable to the
Corporation or its shareholders for damages for breach of fiduciary duty as a
director or officer unless the act or omission involves intentional misconduct,
fraud, a knowing violation of law or the payment of an unlawful dividend in
violation of NRS 78.300.
ARTICLE IX
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation shall indemnify any and all persons who may serve or who
have served at any time as directors or officers or who, at the request of the
Board of Directors of the Corporation, may serve or at any time have served as
directors or officers of another corporation in which the Corporation at such
time owned or may own shares of stock or of which it was or may be a creditor,
and their respective heirs, administrators, successors and assigns, against any
and all expenses, including amounts paid upon judgments, counsel fees and
amounts paid in settlement (before or after suit is commenced), actually and
necessarily by such persons in connection with the defense or settlement of any
claim, action, suit or proceeding in which they, or any of them, are made
parties, or a party, or which may be asserted against them or any of them, by
reason of being or having been directors or officers of the Corporation, or of
such other corporation, except in relation to matters as to which any such
director or officer of the Corporation, or of such other corporation or former
director or officer or person shall be adjudged in any action, suit or
proceeding to be liable for his own negligence or misconduct in the performance
of his duty. Such indemnification shall be in addition to any other rights to
which those indemnified may be entitled under any law, by law, agreement, vote
of shareholder or otherwise.
DATED this 17th day of May, 1996.
NATURAL WAY TECHNOLOGIES, INC.
/s/ Yiu Yat Hung
------------------------------------
Yiu Yat Hung, President
/s/ Ma Li Feng
------------------------------------
Ma Li Feng, Secretary
5
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STATE OF TEXAS Section
Section
COUNTY OF HARRIS Section
On May 17, 1996, personally appeared before me, a Notary Public, Yui Yat
Hung, who acknowledged that she executed the above document in her capacity
as President of Natural Way Technologies, Inc.
/s/ Andrea Benson
------------------------------------
Notary Public
STATE OF TEXAS Section
Section
COUNTY OF HARRIS Section
On May 17, 1996, personally appeared before me, a Notary Public, Ma Li
Feng, who acknowledged that he executed the above document in his capacity as
Secretary of Natural Way Technologies, Inc.
/s/ Andrea Benson
------------------------------------
Notary Public
6
<PAGE>
NATURAL WAY TECHNOLOGIES, INC.
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF A SERIES OF 15,000 SHARES OF PREFERRED STOCK,
$.001 PAR VALUE, DESIGNATED
"SERIES A PREFERRED STOCK"
--------------------------
Natural Way Technologies, Inc., a Nevada Corporation (the "Corporation"),
by way of this Certificate of Designation, Preferences and Rights (as it may
hereafter be amended, modified or supplemented upon vote of the Board of
Directors of the Corporation and approval of all holders of Series A Preferred
Stock, as such term is hereinafter defined, this ("Certificate") certifies that,
pursuant to the authority expressly vested in the Board of Directors by Article
IV of the Corporation's Restated Articles of Incorporation, and in accordance
with the provisions of Section 78.195 of the Nevada Revised Statutes, the Board
of Directors of the Corporation has duly adopted the following resolutions
creating a series of its Preferred Stock designated as Series A Preferred Stock:
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board of Directors of the Corporation by the provisions of
Article IV of the Articles of Incorporation of the Corporation, as amended,
this Board of Directors hereby creates a series of Preferred Stock, $.001
par value, and this Board of Directors hereby fixes the designation and the
voting power, preferences and rights, and the qualifications, limitations
or restrictions thereof, of the shares of such series (in addition to the
powers, preferences and rights, and the qualifications, limitations or
restrictions thereon, set forth in the Articles of Incorporation, as
amended, which are applicable to all series of Preferred Stock of the
Corporation) as follows:
Fifteen thousand (15,000) shares of Preferred Stock, par value $.001 per
share, of the Corporation are hereby constituted as a series of Preferred
Stock designated as Series A Convertible Preferred Stock (the "Series A
Convertible Preferred Stock") with the voting powers and the preferences
and rights hereinafter set forth:
SECTION 1. DIVIDENDS. The holders of shares of Series A Convertible
Preferred Stock (the "Preferred Shares") shall be entitled to receive out of the
assets of the Corporation legally available for dividends such dividends in
cash, stock or property as the board of directors shall, in its discretion,
declare from time to time.
SECTION 2. LIQUIDATION PREFERENCE. In the event of any liquidation,
dissolution or winding up of the affairs of the Corporation, whether voluntary
or involuntary, the holders of the Preferred Shares shall be entitled to be paid
first out of the assets of the Corporation available for distribution to holders
of the Corporation's capital stock of all classes an amount equal to $1,000.00
per share of Series A Convertible Preferred Stock, and no more, before any
distribution shall be made to the holders of the Common Stock or any other class
of capital stock or series thereof ranking junior to the Preferred Shares with
respect to the distribution of assets. If the assets of the Corporation shall
be insufficient to permit the
<PAGE>
payment in full to the holders of the Preferred Shares of the amounts thus
distributable, then the entire assets of the Corporation available for such
distribution shall be distributed ratably among the holders of the Preferred
Shares in proportion to the full preferential amount each such holder is
otherwise entitled to receive.
SECTION 3. VOTING RIGHTS. The holders of the Series A Preferred Stock
shall have no right to vote with respect to matters requiring the vote of the
holders of the Corporation's capital stock except as set forth below.
Without the approval of holders of a majority of the outstanding Preferred
Shares, the Corporation shall not (a) authorize, create or issue any shares
of any class or series ranking senior to the Preferred Shares as to
liquidation rights, (b) amend, alter or repeal, by any means, the Certificate
of Incorporation if the powers, preferences, or special rights of the
Preferred Shares would be adversely affected, or (c) become subject to any
restriction on the Preferred Shares, other than restrictions arising solely
under the General Corporation Law of the State of Nevada or existing under
the Certificate of Incorporation as in effect on December 31, 1995.
SECTION 4. REDEMPTION. Preferred Shares shall be subject to redemption,
at the option of the Corporation, in whole or in part, on ten (10) days written
notice, at any time(s) after December 31, 1997 at a price equal to $1,000 per
share plus any accrued dividends.
SECTION 5. CONVERSION. (a) The holder of any Preferred Shares shall have
the right, at his option on delivery to the Corporation of written notice and
upon surrender of such shares to the Corporation, to convert part or all of the
Preferred Shares held into shares of Common Stock of the Corporation. In the
event the holder of any Preferred Shares has not notified the Corporation of his
election to convert the Preferred Shares into Common Stock on the terms set
forth herein on or before December 31, 1997, the right of the holders of such
Preferred Shares to convert the same into Common Stock shall expire, provided,
however, that all Preferred Shares remaining outstanding at such date shall, at
the option of the Corporation, be converted into Common Stock of the Corporation
on the terms set forth herein on such date.
(b) Conversion of the Preferred Shares shall be subject to the following
limitation: the outstanding Preferred Shares will become eligible for
conversion on or after the date which is 45 days after the closing date of the
purchase of such Preferred Shares (the "Closing Date"). Each conversion shall
be effected by surrendering the certificate(s) evidencing the Preferred Shares
to be converted to the Company with the form of conversion certificate executed
by the holder thereof as to all or a specified portion of the shares evidenced
by such certificate (subject to the limitations set forth above and provided
that conversions will not be permitted for Preferred Shares having an aggregate
liquidation preference of less than $100,000 except as may be required by the
foregoing limitation on conversion) and accompanied, if required by the Company,
by proper assignment in blank. The date of execution of such certificate and
delivery by facsimile to the Company at (713) 547-8910, shall be deemed to the
be "conversion date", provided that certificates evidencing the shares so
converted are delivered within three (3) business days to the Company or its
designated agent.
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(c) The number of shares of Common Stock issuable upon conversion of each
share of Series A Convertible Preferred Stock shall equal the number of shares
of Preferred Shares to be converted multiplied by one thousand (1,000) and
divided by the "Conversion Factor." The Conversion Factor for purposes hereof
shall be equal to the lesser of the Market Price on the Conversion Date, or
$1.00.
(d) For purposes hereof, the "Market Price" shall be the average closing
bid price of the Corporation's Common Stock as reported on the Nasdaq System (or
such other similar organization which may report such information if Nasdaq no
longer reports such information or, if not so available, the fair market price
as determined by the Board of Directors) for the five business days preceding
the date of notice of conversion.
(e) Neither fractional shares, nor scrip or other certificates evidencing
such shares, shall be issued by the Corporation on conversion of the Preferred
Shares as herein provided, but the Corporation shall round to the nearest whole
number the number of shares issuable in such event.
(f) Preferred Shares so converted shall be restored to the status of
authorized but unissued shares.
(g) The Corporation will reserve from its authorized and unissued shares
of Common Stock, and shall increase the number of reserved shares from time to
time, a number of shares sufficient to permit conversion of the Preferred
Shares.
IN WITNESS WHEREOF, Natural Way Technologies, Inc. has caused this
Certificate to be duly executed and attested effective as of the 17th day
of May, 1996.
NATURAL WAY TECHNOLOGIES, INC.
By: /s/ Yui Yat Hung
-----------------------------------
Name: Yui Yat Hung
---------------------------------
Title: President
-----------------------------------
ATTEST:
/s/ Ma Li Feng
- - --------------------
Ma Li Feng, Secretary
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STATE OF TEXAS Section
Section
COUNTY OF HARRIS Section
I, Andrea Benson, a Notary Public, do hereby certify that on this 17th day
of May, 1996, personally appeared before me Yui Yat Hung, who, being by me
first duly sworn declared that he is the President of NATURAL WAY
TECHNOLOGIES, INC., that he signed the foregoing document as President of the
corporation, and that the statements therein contained are true and correct.
[SEAL] /s/ Andrea Benson
---------------------------------------
Notary Public in and for the
State of Texas
Andrea Benson
---------------------------------------
Printed Name of Notary Public
My Commission Expires: 9/12/99
STATE OF TEXAS Section
Section
COUNTY OF HARRIS Section
I, Andrea Benson, a Notary Public, do hereby certify that on this 17th day
of May, 1996, personally appeared before me Ma Li Feng who, being by me
first duly sworn declared that he is the Secretary of NATURAL WAY
TECHNOLOGIES, INC., that he signed the foregoing document as Secretary of the
corporation, and that the statements therein contained are true and correct.
/s/ Andrea Benson
---------------------------------------
Notary Public in and for the
State of Texas
Andrea Benson
---------------------------------------
Printed Name of Notary Public
My Commission Expires: 9/12/99
4
<PAGE>
NATURAL WAY TECHNOLOGIES, INC.
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF A SERIES OF 100,000 SHARES OF PREFERRED STOCK,
$.001 PAR VALUE, DESIGNATED
"SERIES B PREFERRED STOCK"
--------------------------
Natural Way Technologies, Inc., a Nevada Corporation (the "Corporation"),
by way of this Certificate of Designation, Preferences and Rights (as it may
hereafter be amended, modified or supplemented upon vote of the Board of
Directors of the Corporation and approval of all holders of Series B Preferred
Stock, as such term is hereinafter defined (this "Certificate")) certifies that,
pursuant to the authority expressly vested in the Board of Directors by Article
IV of the Corporation's Restated Articles of Incorporation, and in accordance
with the provisions of Section 78.195 of the Nevada Revised Statutes, the Board
of Directors of the Corporation has duly adopted the following resolutions
creating a series of its Preferred Stock designated as Series B Preferred Stock:
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board of Directors of the Corporation by the provisions of
Article IV of the Restated Articles of Incorporation of the Corporation,
this Board of Directors hereby creates a series of Preferred Stock, $.001
par value, and this Board of Directors hereby fixes the designation and the
voting power, preferences and rights, and the qualifications, limitations
or restrictions thereof, of the shares of such series (in addition to the
powers, preferences and rights, and the qualifications, limitations or
restrictions thereon, set forth in the Restated Articles of Incorporation,
as amended, which are applicable to all series of Preferred Stock of the
Corporation) as follows:
One hundred thousand (100,000) shares of Preferred Stock, par value
$.001 per share, of the Corporation are hereby constituted as a series of
Preferred Stock designated as Series B Preferred Stock (the "Series B
Preferred Stock") with the voting powers and the preferences and rights
hereinafter set forth:
SECTION 1. DIVIDENDS. The holders of shares of Series B Preferred Stock
shall be entitled to receive out of the assets of the Corporation legally
available for dividends such dividends in cash, stock or property as the board
of directors shall, in its discretion, declare from time to time.
SECTION 2. LIQUIDATION PREFERENCE. In the event of any liquidation,
dissolution or winding up of the affairs of the Corporation, whether voluntary
or involuntary, the holders of Series B Preferred Stock shall be entitled to be
paid first out of the assets of the Corporation available for distribution to
holders of the Corporation's capital stock of all classes an amount equal to
$.001 per share of Series B Preferred Stock, and no more, before any
distribution of assets. If the assets of the Corporation shall be insufficient
to permit the
<PAGE>
payment in full to the holders of the Series B Preferred Stock of the amounts
thus distributable, then the entire assets of the Corporation available for
such distribution shall be distributed ratably among the holders of the
Series B Preferred Stock in proportion to the full preferential amount each
such holder is otherwise entitled to receive.
SECTION 3. VOTING RIGHTS. The holders of the Series B Preferred Stock
shall, as a class, be entitled to such number of votes as shall constitute
thirty percent (30%) of the total eligible votes in all matters voted on by the
shareholders of the Corporation and shall be further entitled to such voting
rights as may be expressly required by law.
SECTION 4. RIGHTS OTHERWISE IDENTICAL. In all other respects, each share
of Series B Preferred Stock and the shares of all other series shall have
identical rights and privileges in every respect.
IN WITNESS WHEREOF, Natural Way Technologies, Inc. has caused this
Certificate to be duly executed and attested effective as of the 27th day of
September, 1996.
NATURAL WAY TECHNOLOGIES, INC.
By: /s/ Yiu Yat Hung
-----------------------------------
Name: Yiu Yat Hung
---------------------------------
Title: President
---------------------------------
ATTEST:
/s/ Ma Li Feng
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Secretary
2
<PAGE>
STATE OF TEXAS Section
Section
COUNTY OF HARRIS Section
I, Andrea Benson, a Notary Public, do hereby certify that on this 27th
day of September, 1996, personally appeared before me Yiu Yat Hung, who, being
by me first duly sworn declared that he is the President of NATURAL WAY
TECHNOLOGIES, INC., that he signed the foregoing document as President of the
corporation, and that the statements therein contained are true and correct.
/s/ Andrea Benson
---------------------------------------
Notary Public in and for the
State of Texas
------------------------------
Andrea Benson
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Printed Name of Notary Public
My Commission Expires: 9/12/99
----------------
3
<PAGE>
AMENDED BYLAWS
OF
NATURAL WAY TECHNOLOGIES, INC.
(FORMERLY ENERGY SYSTEMS, INC.)
(AMENDED AND EFFECTIVE AS OF SEPTEMBER 27, 1996)
ARTICLE I
OFFICES
1.01 REGISTERED OFFICE AND AGENT
The registered office of the Corporation shall be maintained at CSC
Network, c/o Prentice Hall Corporate Services, 502 East John Street, Room E,
Carson City, in the State of Nevada. The registered office or the registered
agent, or both, may be changed by resolution of the Board of Directors, upon
filing the statement required by law.
1.02 PRINCIPAL OFFICE
The principal office of the Corporation shall be at Room 3105, 31/F,
Universal Trade Centre, 3 - 5 A Arbuthnot Road, Central, Hong Kong provided that
the Board of Directors shall have power to change the location of the principal
office in its discretion.
1.03 OTHER OFFICES
The Corporation may also maintain other offices at such places within or
without the State of Nevada as the Board of Directors may from time to time
appoint or as the business of the Corporation may require.
ARTICLE II
SHAREHOLDERS
2.01 PLACE OF MEETING
All meetings of shareholders, both regular and special, shall be held
either at the principal office of the Corporation, or at such other place as
shall be designated in the notice of the meeting.
2.02 ANNUAL MEETING
The annual meeting of shareholders for the election of directors and for
the transaction of all other business which may come before the meeting shall be
held on the last Friday of May in each year (if not a legal holiday and, if a
legal holiday, then on the next business day following), or on such other date,
and at such hour, as may be specified in the notice of meeting.
<PAGE>
If the election of directors shall not be held on the day above designated
for the annual meeting, the Board of Directors shall cause the election to be
held as soon thereafter as conveniently may be at a special meeting of the
shareholders called for the purpose of holding such election.
The annual meeting of shareholders may be held for any other purpose in
addition to the election of directors which may be specified in a notice of such
meeting. The meeting may be called by resolution of the Board of Directors or
by a writing filed with the secretary signed either by a majority of the
directors or by shareholders owning a majority in amount of the entire capital
stock of the Corporation issued and outstanding and entitled to vote at any such
meeting.
2.03 NOTICE OF SHAREHOLDERS' MEETING
A written or printed notice stating the place, day and hour of the meeting,
and in case of a special meeting, the purpose or purposes for which the meeting
is called, shall be delivered not less than ten (10) nor more than sixty (60)
days before the date of the meeting, either personally or by mail, by or at the
direction of the president, secretary or the officer or person calling the
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 his address as it appears on the
share transfer books of the Corporation, with postage thereon prepaid.
2.04 VOTING OF SHARES
Each outstanding share, regardless of class, shall be entitled to one vote
on each matter submitted to a vote at a meeting of shareholders, except to the
extent that the voting rights of the shares of any class or classes are
modified, limited or denied by the Articles of Incorporation or by law.
Treasury shares, shares of its own stock owned by another corporation the
majority of the voting stock of which is owned or controlled by this
Corporation, and shares of its own stock held by this Corporation in a fiduciary
capacity shall not be voted, directly or indirectly, at any meeting, and shall
not be counted in determining the total number of outstanding shares at any
given time.
A shareholder may vote either in person or by proxy executed in writing by
the shareholder or by his duly authorized attorney-in-fact. No proxy shall be
valid after eleven (11) months from the date of its execution unless otherwise
provided in
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the proxy. Each proxy shall be revocable unless expressly provided therein
to be irrevocable, and in no event shall it remain irrevocable for a period
of more than eleven (11) months.
At each election for directors, every shareholder entitled to vote at such
election shall have the right to vote, in person or by proxy, the number of
shares owned by him for as many persons as there are directors to be elected and
for whose election he has a right to vote, or if authorized by the Articles of
Incorporation, to cumulate his votes by giving one candidate as many votes as
the number of such directors multiplied by the number of his shares shall equal,
or by distributing such votes on the same principal among any number of such
candidates. Any shareholder who intends to cumulate his votes as herein
authorized shall give written notice of such intention to the secretary of the
Corporation on or before the day preceding the election at which such
shareholder intends to cumulate his votes.
2.05 CLOSING 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 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 may provide
that the share transfer books shall be closed for a stated period not exceeding
sixty (60) 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 ten (10) days immediately
preceding such meeting. In lieu of closing the stock transfer books, the ByLaws
or, in the absence of an applicable ByLaw, the Board of Directors may fix in
advance a date as the record date for any such determination of shareholders,
not later than sixty (60) days and, in case of a meeting of shareholders, not
earlier than ten (10) days, prior to the date on which the particular action
requiring such determination of shareholders is to be taken. If the share
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 a dividend, the date on 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 for such determination of shareholders. When a determination of
shareholders 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
share transfer books and the stated period of closing has expired.
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<PAGE>
2.06 QUORUM OF SHAREHOLDERS
Unless otherwise provided in the Articles of Incorporation, the holders of
a majority of the shares entitled to vote, represented in person or by proxy,
shall constitute a quorum at a meeting of shareholders, but in no event shall a
quorum consist of the holders of less than one-third (1/3) of the shares
entitled to vote and thus represented at such meeting. 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, the Articles of
Incorporation or the ByLaws.
2.07 VOTING LISTS
The officer or agent having charge of the share transfer books for the
shares of the Corporation shall make, at least ten (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 (10) days prior to such meeting, shall be kept on file at the registered
office of the Corporation and shall be subject to inspection by any shareholders
at any time during usual business hours. Such list shall also be produced and
kept open at the time and place of the meeting and shall be subject to the
inspection of any shareholder during the whole time of the meeting. The
original share transfer books shall be prima-facie evidence as to who are the
shareholders entitled to examine such list or transfer books or to vote at any
meeting of shareholders.
2.08 ACTION BY CONSENT OF SHAREHOLDERS
In lieu of a formal meeting, action may be taken by written consent of such
number of the shareholders as is required by either State law or the
Corporation's Bylaws for passage of such corporate action.
ARTICLE III
DIRECTORS
3.01 BOARD OF DIRECTORS
The business and affairs of the Corporation shall be managed by a Board of
Directors. Directors need not be residents of the State of Nevada or
shareholders in the Corporation.
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<PAGE>
3.02 NUMBER AND ELECTION OF DIRECTORS
The number of directors shall be not less than one (1) nor more than nine
(9). The number of directors constituting the board shall be fixed from time to
time by the Directors provided that the number may be increased or decreased
from time to time by an amendment to these ByLaws, but no decrease shall have
the effect of shortening the term of any incumbent director. At each annual
election the shareholders shall elect directors to hold office until the next
succeeding annual meeting.
3.03 VACANCIES
Any vacancy occurring in the Board of Directors may be filled by the
affirmative vote of the remaining directors, though less than a quorum of the
Board. A director elected to fill a vacancy shall be elected for the unexpired
term of his predecessor in office. Any directorship to be filled by reason of
an increase in the number of directors shall be filled by election at an annual
meeting or at a special meeting of shareholders called for that purpose.
3.04 QUORUM OF DIRECTORS
A quorum for purposes of all Board meetings and the transaction of business
thereat shall consist of a majority of the Directors. The act of the majority
of the directors present at a meeting at which a quorum is present shall be the
act of the Board of Directors.
3.05 ANNUAL MEETING OF DIRECTORS
Within thirty (30) days after each annual meeting of shareholders, the
Board of Directors elected at such meeting shall hold an annual meeting at which
they shall elect officers and transact such other business as shall come before
the meeting.
3.06 REGULAR MEETING OF DIRECTORS
A regular meeting of the Board of Directors may be held at such time as
shall be determined from time to time by resolution of the Board of Directors.
3.07 SPECIAL MEETINGS OF DIRECTORS
The secretary shall call a special meeting of the Board of Directors
whenever requested to do so by the President or by two directors. Such special
meeting shall be held at the time specified in the notice of meeting.
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<PAGE>
3.08 PLACE OF DIRECTORS MEETINGS
All meetings of the Board of Directors (annual, regular or special) shall
be held either at the principal office of the Corporation or at such other
place, either within or without the State of Nevada, as shall be specified in
the notice of meeting.
3.09 NOTICE OF DIRECTORS MEETINGS
All meetings of the Board of Directors (annual, regular or special) shall
be held upon five (5) days written notice stating the date, place and hour of
meeting delivered to each director either personally or by mail or at the
direction of the president or the secretary or the officer or person calling the
meeting.
In any case where all of the directors execute a waiver of notice of the
time and place of meeting, no notice thereof shall be required, and any such
meeting (whether annual, regular or special) shall be held at the time and at
the place (either within or without the State of Nevada) specified in the waiver
of notice. Attendance of a director at any meeting shall constitute a waiver of
notice of such meeting, except where the directors attends a 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.
Neither the business to be transacted at, nor the purpose of, any annual,
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
3.10 COMPENSATION
Directors, as such, shall not receive any stated salary for their services,
but by resolution of the Board of Directors a fixed sum and expenses of
attendance, if any, may be allowed for attendance at each annual, regular or
special meeting of the Board, provided, that nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
3.11 ACTION BY CONSENT OF DIRECTORS
In lieu of a formal meeting, action may be taken by written consent of such
number of the directors as is required by either State law or the Corporation's
Bylaws for passage of such corporate action.
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<PAGE>
3.12 COMMITTEES
The board of directors may, by resolution passed by a majority of the whole
board, designate an executive committee and one or more other committees, each
committee to consist of one or more of the directors of the Corporation. The
board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee.
Any such committee, to the extent provided in the resolution of the board
of directors, shall have and may exercise all the powers and authority of the
board of directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to making, altering or repealing any bylaw of the
Corporation; electing or appointing any director, or removing any officer or
director; submitting to shareholders any action that requires shareholders'
approval; or amending or repealing any resolution theretofore adopted by the
board which by its terms is amendable or repealable only by the board. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors. Each committee
shall keep regular minutes of its meetings and report the same to the board of
directors when required.
ARTICLE IV
OFFICERS
4.01 OFFICERS ELECTION
The officers of the Corporation shall consist of a president, one or more
vice presidents, a secretary, and a treasurer. The board of directors may also
choose, at its discretion, a Chairman of the Board, one or more assistant
secretaries and one or more assistant treasurers. All such officers shall be
elected at the annual meeting of the Board of Directors provided for in Article
III, Section 5. If any office is not filled at such annual meeting, it may be
filled at any subsequent regular or special meeting of the Board. The Board of
Directors at such annual meeting, or at any subsequent regular or special
meeting may also elect or appoint such other officers and assistant officers and
agents as may be deemed necessary. Any two or more offices may be held by the
same person, except the offices of president and secretary.
All officers and assistant officers shall be elected to serve until the
next annual meeting of directors (following the next annual meeting of
shareholders) or until their successors are
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<PAGE>
elected; provided, that any officer or assistant officer elected or appointed
by the Board of Directors may be removed with or without cause at any regular
or special meeting of the Board whenever in the judgment of the Board of
Directors the best interests 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. Any agent appointed shall serve for such term as
shall be specified, subject to like right of removal by the Board of
Directors.
4.02 VACANCIES
If any office becomes vacant for any reason, the vacancy may be filled by
the Board of Directors.
4.03 POWER OF OFFICERS
Each officer shall have, subject to these ByLaws, in addition to the duties
and powers specifically set forth herein, such powers and duties as are commonly
incident to his office and such duties and powers as the Board of Directors
shall from time to time designate. All officers shall perform their duties
subject to the directions and under the supervision of the Board of Directors.
The president may secure the fidelity of any and all officers by bond or
otherwise.
4.04 PRESIDENT
The president, or such other person as the Board of Directors may appoint,
shall be the chief executive officer of the Corporation. He shall preside at
all meetings of the directors and shareholders. He shall see that all orders
and resolutions of the Board are carried out, subject however, to the right of
the directors to delegate specific powers, except such as may be by statute
exclusively conferred on the president, to any other officers of the
Corporation.
He or any vice president shall execute bonds, mortgages and other
instruments requiring a seal, in the name of the Corporation, and, when
authorized by the Board, he or any vice president may affix the seal to any
instrument requiring the same, and the seal when so affixed shall be attested by
the signature of either the secretary or an assistant secretary. He or any vice
president shall sign certificates of stock.
The president shall be ex-officio a member of all standing committees.
He shall submit a report of the operations of the Corporation for the year
to the directors at their meeting next preceding the
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<PAGE>
annual meeting of the shareholders and to the shareholders at their annual
meeting.
4.05 VICE PRESIDENT
The vice president shall, in the absence or disability of the president,
perform the duties and exercise the powers of the president, and they shall
perform such other duties as the Board of Directors shall prescribe.
4.06. SECRETARY AND ASSISTANT SECRETARIES
The secretary shall attend all meetings of the Board and all meetings of
the shareholders and shall record all votes and the minutes of all proceedings
and shall perform like duties for the standing committees when required. He
shall give or cause to be given notice of all meetings of the shareholders and
all meetings of the Board of Directors and shall perform such other duties as
may be prescribed by the Board. He shall keep in safe custody the seal of the
Corporation, and when authorized by the Board, affix the same to any instrument
requiring it, and when so affixed, it shall be attested by his signature or by
the signature of an assistant secretary.
The assistant secretary shall, in the absence or disability of the
secretary, perform the duties and exercise the powers of the secretary, and they
shall perform such other duties as the Board of Directors shall prescribe.
In the absence of the secretary or an assistant secretary, the minutes of
all meetings of the Board and shareholders shall be recorded by such person as
shall be designated by the president or by the Board of Directors.
4.07 TREASURER AND ASSISTANT TREASURERS
The treasurer shall have the custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may be designated by the Board of Directors.
The treasurer shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, taking proper vouchers for such disbursements. He
shall keep and maintain the Corporation's books of account and shall render to
the president and directors an account of all of his transactions as treasurer
and of the financial condition of the Corporation and exhibit his books, records
and accounts to the president or directors at any
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time. He shall disburse funds for capital expenditures as authorized by the
Board of Directors and in accordance with the orders of the president, and
present to the president for his attention any requests for disbursing funds
if in the judgment of the treasurer any such request is not properly
authorized. He shall perform such other duties as may be directed by the
Board of Directors or by the president.
If required by the Board of Directors, he shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the
Board for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
The assistant treasurers in the order of their seniority shall, in the
absence or disability of the treasurer, perform the duties and exercise the
powers of the treasurer, and they shall perform such other duties as the Board
of Directors shall prescribe.
ARTICLE V
CERTIFICATES OF STOCK: TRANSFER, ETC.
5.01 CERTIFICATES OF STOCK
The certificates for shares of stock of the Corporation shall be numbered
and shall be entered in the Corporation as they are issued. They shall exhibit
the holder's name and number of shares and shall be signed by the president or a
vice president and the secretary or an assistant secretary or if the Board of
Directors determines, by any one of the afore named officers and shall be sealed
with the seal of the Corporation or a facsimile thereof. If the Corporation has
a transfer agent or a registrar, other than the Corporation itself or an
employee of the Corporation, the signatures of any such officer may be
facsimile. In case any officer or officers who shall have signed or whose
facsimile signature or signatures shall have been used on any such certificate
or certificates shall cease to be such officer or officers of the Corporation,
whether because of death, resignation or otherwise, before said certificate or
certificates shall have been issued, such certificate may nevertheless be issued
by the Corporation with the same effect as though the person or persons who
signed such certificates or whose facsimile signature or signatures shall have
been used thereon had been such officer or officers at the date of its issuance.
Certificates shall be in such form as shall in conformity to law be prescribed
from time to time by the Board of Directors.
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The Corporation may appoint from time to time transfer agents and
registrars, who shall perform their duties under the supervision of the
secretary.
5.02 TRANSFERS OF SHARES
Upon surrender to the Corporation or the transfer agent of the Corporation
of a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate, and record the transaction upon its books.
5.03 REGISTERED SHAREHOLDERS
The Corporation shall be entitled to treat the holder of record of any
share or shares of stock as the holder in fact thereof and, accordingly shall
not be bound to recognize any equitable or other claim to or interest in such
share on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by law.
5.04 LOST CERTIFICATE
The Board of Directors may direct a new certificate or certificates to be
issued in place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate to be lost. When
authorizing such issue of a new certificate or certificates, the Board of
Directors in its discretion and as a condition precedent to the issuance
thereof, may require the owner of such lost or destroyed certificate or
certificates or his legal representative to advertise the same in such manner as
it shall require or to give the corporation a bond with surety and in form
satisfactory to the Corporation (which bond shall also name the Corporation's
transfer agents and registrars, if any, as obligees) in such sum as it may
direct as indemnity against any claim that may be made against the Corporation
or other obligees with respect to the certificate alleged to have been lost or
destroyed, or to advertise and also give such bond.
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ARTICLE VI
DIVIDEND
6.01 DECLARATION
The Board of Directors may declare at any annual, regular or special
meeting of the Board and the Corporation may pay, dividends on the outstanding
shares in cash, property or in the shares of the Corporation to the extent
permitted by, and subject to the provisions of, the laws of the State of Nevada.
6.02 RESERVES
Before payment of any dividend there may be set aside out of any funds of
the Corporation available for dividends such sum or sums as the directors from
time to time in their absolute discretion think proper as a reserve fund to meet
contingencies or for equalizing dividends or for repairing or maintaining any
property of the Corporation or for such other purpose as the directors shall
think conducive to the interest of the Corporation, and the directors may
abolish any such reserve in the manner in which it was created.
ARTICLE VII
MISCELLANEOUS
7.01 INFORMAL ACTION
Any action required to be taken or which may be taken at a meeting of the
shareholders, directors or members of the executive committee, may be taken
without a meeting if a consent in writing setting forth the action so taken
shall be signed by such number of the shareholders, directors, or members of the
executive committee as is required by law, as the case may be, entitled to vote
with respect to the subject matter thereof, and such consent shall have the same
force and effect as a vote of the shareholders, directors, or members of the
executive committee, as the case may be, at a meeting of said body.
7.02 SEAL
The corporate seal shall be circular in form and shall contain the name of
the Corporation, the year of its incorporation and the words "NEVADA", and
"CORPORATE SEAL". The seal may be used by causing it or a facsimile to be
impressed or affixed or in any other manner reproduced. The corporate seal may
be altered by order of the Board of Directors at any time.
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7.03 CHECKS
All checks or demands for money and notes of the Corporation shall be
signed by such officer or officers or such other person or persons as the Board
of Directors may from time to time designate.
7.04 FISCAL YEAR
The fiscal year of the Corporation shall begin on the first day of January
in each and every year.
7.05 DIRECTORS ANNUAL STATEMENT
The Board of Directors shall present at each annual meeting of shareholders
a full and clear statement of the business and condition of the Corporation.
7.06 AMENDMENTS
These ByLaws may be altered, amended or repealed in whole or in part by the
affirmative vote of the Board of Directors.
ARTICLE VIII
INDEMNIFICATION OF OFFICERS AND DIRECTORS
8.01 RIGHT TO INDEMNIFICATION
Each person who was or is made a party or is threatened to be made a party
to or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she 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 or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (hereinafter an "indemnitee"), whether the
basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by Section 78.751 of the Nevada
Revised Statutes, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than such law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
shall continue as
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to an indemnitee who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of the indemnitee's heirs, executors and
administrators; provided, however, that except as provided in Section 2
hereof with respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such indemnitee in connection with a
proceeding (or part thereof) initiated by indemnitee only if such proceeding
(or part thereof) was authorized by the Board of Directors of the
Corporation. The right to indemnification conferred in this Section shall be
a contract right and shall include the right to be paid by the Corporation
the expenses incurred in defending any such proceeding in advance of its
final disposition (hereinafter an "advancement of expenses"); provided,
however, if Nevada law requires, an advancement of expenses incurred by an
indemnitee in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit plan) shall be
made only upon delivery to the Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for
such expenses under this Section or otherwise.
8.02 RIGHT OF INDEMNITEE TO BRING SUIT
If a claim under Section 1 of this Article is not paid in full by the
Corporation within sixty days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) in any suit by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking the Corporation
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met the applicable standard of conduct set forth in Section
78.751 of the Nevada Revised Statutes. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
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because the indemnitee has met the applicable standard of conduct set forth in
Section 78.751 of the Nevada Revised Statutes nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct, or, in the case of such suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article or otherwise shall be on the Corporation.
8.03 NON-EXCLUSIVITY OF RIGHTS
The rights to indemnification and to the advancement of expenses conferred
in this Article shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, the Corporation's certification of
incorporation, bylaw, agreement, vote of stockholders or disinterested directors
or otherwise.
8.04 INSURANCE
The Corporation may maintain insurance, at its expense, to protect itself
and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under Nevada
law.
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