Exhibit 99.6
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into this
30th day of September, 1997, and revised the 24th day of
September, 1998, by and between UNITED XXXXXXX CORPORATION, a
Colorado corporation (the "Company" or "Employer") and Xxxxxx X.
Xxxxxxxxx, Xx., an individual residing at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000.
WHEREAS, the Company is willing to employ the Employee and
the Employee is willing to be employed by the Company on the
terms, covenants and conditions set forth herein; and
WHEREAS, the Company and the Employee desire to define in
this Agreement, the rights, duties and obligations of the
employment agreed to between the parties;
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained in this Agreement and specifically in
consideration of the employment of the Employee by the Company for
the compensation and upon the terms set forth herein, the parties
agree as follows:
1. Term. Subject to the provisions for termination as
hereinafter provided, the Company hereby agrees to employ the
Employee and the Employee hereby agrees to be employed by the
Company, for a term of five (5) years beginning on January 1,
1998, or an earlier date agreed to by both parties.
2. Duties of Employee.
A. The Employee agrees to perform the services
provided herein to the best of his ability and to the satisfaction
of the Board of Directors of the Company. The Employee shall
devote his full time, attention, energies and best efforts to
providing said services to the Company.
B. The Company hereby employs and engages the Employee
in the position of Executive Vice President and Chief Operating
Officer; and, in this capacity Employee will also be engaged as
President of the HeaterMeals Company. The Employee shall render
to the Company administrative and management services as are
customarily rendered by persons situated in similar management
capacities and to provide such other services for the Company as
directed by the Chief Executive Officer which shall be reasonably
related to his position, so long as the nature of same shall be
consistent with and appropriate to an executive position of no
lesser than that of other executives reporting directly to the
Company's Chief Executive Officer.
3. Compensation.
A. (i) As compensation for the full and faithful
performance of the services to be rendered by the
Employee to the Company as set forth in Section 2
hereof, the Company shall pay the Employee a base
salary of $200,000.00 for the period from January
1, 1998 through December 31, 1998 and for each
subsequent one-year period (subject to Sections
3(C) and 6).
(ii) As additional compensation and consideration
for entering into this Agreement the Employer
shall grant to the Employee a non-qualified stock
option award with immediate vesting pursuant to
the United Xxxxxxx Corporation 1998 Long-Term
Incentive Plan ("1998 LTIP") to purchase 400,000
shares of common stock of employer with an
exercise price equal to the fair market value of
the common stock utilizing the rules defined by
Section 7(h) of the 1998 LTIP.
B. Said salary shall be payable in twelve (12) equal
monthly installments in accordance with the Company's normal
payroll practices, and subject to withholding of taxes, etc. as
required by law.
C. Employee's base salary shall be reviewed at least
annually, commencing with a review during the month of March, 1999
and may be adjusted from time to time in the sole discretion of
the Board of Directors of the Company, but in no event will it be
adjusted to an amount lower than $200,000 per year.
D. Employee shall receive an annual bonus of 25% of
base compensation based on the Employee's performance of the
duties set forth in Section 2, which may be amended from time to
time. Employer agrees that the annual bonus for the twelve (12)
month period ending December 31, 1998 of $50,000 shall be
guaranteed and shall be paid within 60 days of the end of the
calendar year. Each successive annual bonus awarded to Employee
shall also be paid within 60 days of the end of the calendar year.
E. Employee shall receive an additional performance
bonus in cash, common stock of the Company, options to purchase
common stock of the company, or any combination of cash, stock and
options, with the method of payment to be at the discretion of the
Board of Directors of the Company if the Company's performance
goals, established from time to time by the Board, are met. The
parties understand and agree that the goals for the first year of
this Agreement are as stated in Exhibit 1. The performance bonus
is to be paid within 60 days of the end of the calendar year.
4. Benefits and Expenses. During the term of this
Agreement, Company shall provide to the Employee:
A. The Employee shall be reimbursed for all ordinary
and reasonable business-related expenses incurred during the
performance of the service set forth in Section 2 hereof upon
submission of receipts for same. All such expenses are subject to
the approval of the Company. Reimbursement for automobile mileage
will be at the rate currently prescribed by the Internal Revenue
Service.
B. Twenty- five (25) days paid vacation per calendar
year in accordance with Company's vacation policy to be taken at
such time or times and for such duration as Employee shall
determine in accordance with the Company policy provided that such
vacation shall not interfere with the material performance of the
service set forth in Section 2. Employee shall not be entitled to
carry over any unused portion of vacation into a subsequent year.
C. Hospitalization and major medical insurance,
consistent with the Company's group policies, for Employee and his
immediate family, upon such terms as are provided to employees of
the Company generally, which may be modified by the Company from
time to time.
D. Life insurance on Employee's life with a death
benefit of no less than $500,000.00.
E. The Company agrees to provide to Employee the
additional fringe benefits available to salaried employees of the
Company generally, which may be modified by the Company from time
to time.
5. Covenants of Employee. The Employee agrees and
acknowledges that certain of the Company's services are
proprietary in nature and shall have been marketed through the use
of customer lists, trade secrets, methods of operation and other
confidential information possessed by the Company and disclosed in
confidence to the Employee (hereinafter the "Trade Secrets or
Confidential Information") which may not have been accessible to
other persons in the trade, Trade Secrets or Confidential
Information shall not include: (i) any information in the public
domain, (ii) any information received unsolicited from a third
party under no obligation of secrecy, or (iii) any information
known by Employee prior to entering into this Agreement. The
Employee also acknowledges that he will have substantial and
ongoing contact with the Company's clients and will thereby gain
knowledge of clients' needs and preferences, sources of
information and other valuable information necessary for the
success of Company's business. The Employee therefore covenants
and agrees as follows:
A. He will not at any time take any action or make
any statement that could discredit the reputation of the Company
or its services or products.
B. During the term of this Agreement and for a period
of one (1) year following termination of Employee's employment
with the Company for any reason, the Employee shall not:
(i) Solicit or accept business directly or
indirectly from any client of the Company which
does business within a five hundred (500) mile
radius of any facility owned or operated by the
Company;
(ii) Except as may be required by law, disclose,
divulge, discuss, copy or otherwise use or
suffer to be used in any manner, in competition
with, or contrary to the interest of the
Company, the Trade Secrets or Confidential
Information or any other confidential
information of or pertaining to the Company or
its services, disclosed to or obtained by the
Employee during the term of this Agreement. The
Employee further agrees that he shall not,
either during the term of this Agreement or at
any time subsequent thereto, use, disclose or
otherwise reveal any of the Trade Secrets or
Confidential Information to any person, either
directly or indirectly, whether or not for
compensation or remuneration, except as
necessary while performing services on behalf of
the Company;
(iii) Own, manage, advise, counsel, assist or engage
in the ownership, management or control of, or
be employed or engaged by or otherwise
affiliated or associated as a consultant,
independent contractor or otherwise, directly or
indirectly, with any other corporation,
partnership, proprietorship, or other business
entity, or otherwise engage in any business
which competes with or is similar in nature to a
business in which the Company is engaged, and
from which the Company derives more than 5% of
its revenue within a five hundred (500) mile
radius of any facility owned or operated by the
Company; and
(iv) In conjunction with 5(B)(iii), solicit, induce,
aid or suggest to any of the employees,
officers, agents, or consultants of the Company
or other persons having a substantial
contractual relationship with the Company, to
leave such employ, cease any consulting
relationship with the Company, or terminate such
contractual relationship with the Company.
C. Employee recognizes that the foregoing items are
material to this Agreement and that the failure to abide by such
terms shall constitute sufficient Cause for Termination of
Employment as provided in Section 6 hereof.
D. Employee agrees and understands that the remedy at
law for any breach of this Section 5 will be inadequate and that
damages flowing from such breach are not readily susceptible to
being measured in monetary terms. Accordingly, in the event that
the Company shall institute any action or proceeding to enforce
the provisions of this Agreement, the Employee hereby waives the
claim or defense therein that the Company has an adequate remedy
at law. Nothing in this Section 5 shall be deemed to limit the
Company's remedies at law or in equity for breach by the Employee
of any of the provisions of this Section 5 which may be pursued by
the Company.
E. Employee shall not create or suffer to be created,
without the express prior written consent of the Company, any
mortgage, pledge, lien or encumbrance of any kind whatsoever
against or upon any property of the Company, or make any contract
or create any obligation, liability or debt of any kind, in the
name of or binding upon the Company without its prior written
consent other than in the ordinary course of business.
F. Employee agrees that, upon termination of
employment with the Company for any reason whatsoever, Employee
will immediately return to Company all papers, books, price lists
and price information, lists of sources of supply, customer lists,
processes, inventions, mailing lists, employee lists and resumes,
computer print-outs, manuals, sales literature, Employee's copies
of customer invoices, quotations, purchase orders, any copies of
the foregoing or any documents or notes containing excerpts from
the foregoing and all other documents, data, equipment, and
products belonging to or related to the business of the Company
which may be in Employee's possession. If any such information
has been electronically stored, Employee shall return all disks,
or other storage media, containing such information and shall
permanently delete such information from the computer hard drive,
of other non removable storage device, or any computer owned or
controlled by Employee after providing the Company a copy of the
information.
G. Employee agrees to assign and hereby assigns to
Company all of Employee's right, title and interest, if any, in
and to all inventions, improvements, patents, trademarks,
copyrights, and trade names, which during the period of Employee's
employment by Company, Employee has obtained, made or conceived or
may hereafter make or conceive, either solely or jointly with
others, in the course of such employment, within the scope of
Company's business, work or investigations, or with use of
Company's time, employees, material or facilities, or relating to
or suggested by work or problems arising in Company's business of
which Employee has been or may become aware by reason of
Employee's employment. Employee agrees that Employee will
execute, acknowledge and deliver all papers, documents,
assignments and other information as may be required by Company to
obtain any patents, trademarks, copyrights, trade names or other
registrations or applications in the name of Company.
H. Employee agrees that the remedy at law for any
breach by Employee of the covenants set forth in the foregoing
sections 5A, B, C, D, E, F, or G is inadequate and the Company, in
addition to having an action at law for damages, shall be entitled
to injunctive relief to enforce these covenants.
6. Termination.
A. The Employee and the Company specifically agree
that the employment of Employee may terminate only upon the
occurrence of any one or more of the following events:
(i) The cessation of the business of the Company,
either voluntary or involuntarily;
(ii) The merger, consolidation, reorganization or
dissolution of the Company;
(iii) Death or permanent disability of the Employee,
including but not limited to a physical or
mental disability which renders Employee
incapable of effectively and efficiently
performing his duties hereunder for a
consecutive period of sixty (60) days or for an
aggregate of one hundred twenty (120) days or
more during any twelve month period;
(iv) For "Cause," which means:
(a) an act or acts of dishonesty on the
Employee's part or conviction of any felony, or
any crime involving moral turpitude or entering
into a treatment program in lieu of such
conviction;
(b) any material violation by the Employee of
his responsibilities, duties or obligations
hereunder, or failure to perform his duties as
reasonably instructed by the Board of Directors
of the Company. Employee shall be notified in
writing of any such alleged failure to perform
and shall be given a reasonable time frame in
which to remedy his failure before he is
terminated for cause under this provision;
(c) engaging by Employee in conduct which is
demonstrably and materially injurious to the
Company, monetarily or otherwise, including but
not limited to, any material misrepresentation
related to the performance of his duties;
(d) any material breach by Employee of this
Agreement. Employee shall be notified in
writing of any such alleged failure to perform
and shall be given a reasonable time frame in
which to remedy his failure before he is
terminated for cause under this provision;
(e) material breach by Employee of any of his
obligations contained in the Company handbook
for Employees, or such other document or
collection of documents which set forth Company
policy. Employee shall be notified in writing
of any such alleged failure to perform and shall
be given a reasonable time frame in which to
remedy his failure before he is terminated for
cause under this provision;
(v) By either party upon thirty (30) days
written notice.
B. Company shall give Employee thirty (30) days prior
written notice of termination of employment. Company shall have
the option: (i) to retain the services of the Employee for said
thirty (30) days, or (ii) compensate Employee for the number of
days less than thirty (30) days he received notice at the then
current salary rate for Employee.
C. Except as provided in 6(E), upon termination of
the employment of Employee for any reason whatsoever whether or
not the termination is determined to be for Cause and to protect
Trade Secrets and Confidential Information, the Employee shall be
entitled to no further salary or other compensation, and the
Company shall have no further obligations under this Agreement,
and except that portion of any unpaid salary accrued and earned by
the Employee hereunder up to the date of termination.
D. Upon termination of the employment of Employee for
any reason whatsoever, whether or not the termination is
determined to be for Cause under this Section, this Agreement
shall continue in full force and effect with respect to Employee's
covenants and agreements set forth in Section 5 above, including
the obligations to refrain from competition with the Company, to
refrain from soliciting agents of the Company, and to protect
Trade Secrets or Confidential Information.
E. Upon termination of Employee by the Employer
without Cause, pursuant to sections 6A(i), 6A(ii) or 6A(v), upon
"Constructive Termination" of Employee through a material
reduction in duties and responsibilities or by breach of this
Agreement by Employer, Employer shall pay Employee severance pay
equal to three times the sum of 1) his base salary in effect at
the time of termination, and 2) the bonuses of Employee for the
prior calendar year. Employee understands and agrees that payment
pursuant to this section 6E shall constitute liquidated damages
and Employee shall have no right to any other compensation from
Employer in connection with this Agreement. The compensation
payable under this provision may be made in cash or in common
stock of the Employer. The Employer shall have the discretion to
choose cash or Employer common stock for 25% of the payment made
under this section 6E and the Employee shall have the discretion
to be paid either in cash or Employer common stock on the
remaining 75%. Employer common stock shall be valued at the date
of payment annually to Employee . The compensation under this
section 6E shall be paid in equal annual installments payable once
every 12 months beginning no later than 3 months following the
date of termination of Employee's employment. In addition, to the
extent that Employee has been granted (i) stock options, stock
appreciation rights or other equity instruments of Employer under
the terms of a stock option, stock appreciation rights or other
similar program as may be implemented by the Company, all such
options, rights or equity instruments which have not vested shall
become fully vested and exercisable by Employee without
restrictions upon termination, and/or (ii) shares of restricted
common stock, all such shares shall become unrestricted and free
and clear of all liens or other encumbrances upon termination.
7. Notices. All notices, demands and other
communications given under this agreement shall be in writing and
shall be deemed effective with hand delivered or mailed by
certified mail, return receipt requested, postage prepaid to the
following addresses:
If to Employee:
Xxxxxx X. Xxxxxxxxx, Xx.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
If to Company:
United Xxxxxxx Corporation
000 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
or at such other addresses as the parties may designate in
writing.
8. Entire Contract. This Agreement constitutes the entire
understanding and agreement between the Company and the Employee
with regard to all matters contained herein. This Agreement may
be amended, supplemented or interpreted at any time only by
written instrument duly executed by all parties.
9. Assignment. This Agreement shall not be assignable by
the Employee without the prior written consent of the Company.
This Agreement shall, to the extent not limited hereby, inure to
the benefit of and be enforceable by the parties hereto, and their
respective heirs, representatives, successors and assigns.
10. Waiver. Any consent by any party to, or waiver of a
breach of any provision of this Agreement by the other, whether
express or implied, shall not constitute a consent to, waiver of,
or excuse for any breach of any other provision or subsequent
breach of the same provision.
11. Legal Construction. In case any one or more of the
provisions contained in this Agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect, that
invalidity, illegality or unenforceability shall not affect any
other provision of this agreement, and this Agreement shall be
construed as if the invalid, illegal or unenforceable provision
had never been contained in it.
12. Governing Law. This Agreement shall be governed by
and construed in accordance with the law of the state of Ohio.
IN WITNESS WHEREOF, the parties have signed this Agreement on the
date first above written.
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxxxx, Xx.
Xxxxxx X. Xxxxxxxxx, Xx.
UNITED XXXXXXX CORPORATION
By: /s/ X.X. Xxxxx
Chairman & CEO
Exhibit 1
0000 Xxxxxx Xxxxxxx Corporation and subsidiaries' consolidated
minimum total gross sales, calculated in accordance with Generally
Accepted Accounting Principles, required to receive additional
bonus: $50,000,000 achieved during the 1998 fiscal year, ending
December 31, 1998.
1998 additional bonus structure:
20% sales growth ("Sales Growth") = $100,000 (cash, stock or
option value)
30% Sales Growth = $150,000 (cash, stock or option value)
40% Sales Growth = $225,000 (cash, stock or option value)
Sales Growth shall be calculated based on the previous 12
months' consolidated total gross sales for United Xxxxxxx
Corporation and its' subsidiaries and those companies for
which a contract has been signed by January 1, 1998 for
merger, consolidation, purchase, share exchange or
similar arrangement with United Xxxxxxx Corporation.
The bonus shall be paid only to the extent such payment does
not cause the consolidated net pre-tax profit margin to fall
below 8%. Such bonus shall not accumulate year to year.
BY-LAWS
OF
UNITED XXXXXXX CORPORATION
(a Colorado Corporation)
(Adopted May 19, 1997, Amended July 14, 1997, Amended
February 13, 1998)
ARTICLE I
Shareholders
Section 1.1 Annual Meetings. An annual meeting of
stockholders shall be held for the election of directors at such
date, time and place, either within or without the State of
Colorado as may be designated by resolution of the Board of
Directors. Any other proper business may be transacted at the
annual meeting.
Section 1.2 Special Meetings. Special meetings of
stockholders for any purpose or purposes, may be called at any
time by the Board of Directors, or by a committee of the Board of
Directors which has been duly designated by the Board of Directors
and whose power and authority, as expressly provided in a
resolution of the Board of Directors, includes the power to call
such meetings, but such special meetings may not be called by any
other person or persons.
Section 1.3 Notice of Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written
notice of the meeting shall be given which shall state the place,
date and hour of the meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called.
Unless otherwise provided by law, the certificate of incorporation
or these by-laws, the written notice of any meeting shall be given
not less than ten nor more than seventy days before the date of
the meeting to each stockholder entitled to vote at such meeting.
If mailed, such notice shall be deemed to be given when deposited
in the mail, postage prepaid and directed to the stockholder at
his address as it appears on the records of the corporation.
Section 1.4 Adjournments. Any meeting of stockholders,
annual or special, may adjourn from time to time to reconvene at
the same or some other place, and notice need not be given of any
such adjourned meeting if the time and place thereof are announced
at the meeting at which the adjournment is taken. At the
adjourned meeting the corporation may transact any business which
could have been transacted at the original meeting. If the
adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting,
a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 1.5 Quorum. Except as otherwise provided by law, the
certificate of incorporation of these by-laws, at each meeting of
stockholders the presence in person or by proxy of the holders of
shares of stock having a majority of the votes which could be cast
by the holders of all outstanding shares of stock entitled to vote
at the meeting shall be necessary and sufficient to constitute a
quorum. In the absence of a quorum, the stockholders so present
may, by majority vote thereof, adjourn the meeting from time to
time in the manner provided in Section 1.4 of these by-laws until
a quorum shall attend. Shares of its own stock belonging to the
corporation or to another corporation, if a majority of the shares
entitled to vote in the election of directors of such other
corporation is held, directly or indirectly, by the corporation,
shall neither be entitled to vote nor be counted for quorum
purposes; provided, however, that the foregoing shall not limit
the right of the corporation to vote stock, including but not
limited to its own stock, held by it in a fiduciary capacity.
Section 1.6 Organization. Meetings of stockholders shall be
presided over by the Chairman of the Board, if any, or in his
absence by the Vice Chairman of the Board, if any, or in his
absence by the President, or in his absence by a Vice President,
or in the absence of the foregoing persons by a chairman
designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary
shall act as secretary of the meeting, but in his absence the
chairman of the meeting may appoint any person to act as secretary
of the meeting.
Section 1.7 Voting; Proxies. Except as otherwise provided by
the certificate of incorporation, each stockholder entitled to
vote at any meeting of stockholders shall be entitled to one vote
for each share of stock held by him which has voting power upon
the matter in question. Each stockholder entitled to vote at a
meeting of stockholders may authorize another person or persons to
act for him by proxy, but no such proxy shall be voted or acted
upon after three years from its date, unless the proxy provides
for a longer period. A duly executed proxy shall be irrevocable
if it states that it is irrevocable and if, and only as long as,
it is coupled with an interest sufficient in law to support an
irrevocable power. A stockholder may revoke any proxy which is
not irrevocable by attending the meeting and voting in person, or
by filing an instrument in writing revoking the proxy or by filing
another duly executed proxy bearing a later date with the
Secretary of the corporation. Voting at meetings of stockholders
need not be by written ballot and need not be conducted by
inspectors of election unless so determined by the holders of
shares of stock having a majority of the votes which could be cast
by the holders of all outstanding shares of stock entitled to vote
thereon which are present in person or by proxy at such meeting.
At all meetings of stockholders for the election of directors a
plurality of the votes cast shall be sufficient to elect. All
other elections and questions shall, unless otherwise provided by
law, the certificate of incorporation or these by-laws, be decided
by the vote of the holders of shares of stock having a majority of
the votes which could be cast by the holders of all shares of
stock entitled to vote thereon which are present in person or
represented by proxy at the meeting.
Section 1.8 Fixing Date for Determining Stockholders of
Record. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of
any change, conversion or exchange of stock or for the purpose of
any other lawful action, The Board of Directors may fix a record
date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of
Directors and which record date: (1) in the case of determination
of stockholders entitled to vote at any meeting of stockholders or
adjournment thereof, shall, unless otherwise required by law, not
be more than seventy nor less than ten days before the date of
such meeting; (2) in the case of determining stockholders entitled
to express consent to corporate action in writing without a
meeting, shall not be more than ten days from the date upon which
the resolution fixing the record date is adopted by the Board of
Directors; and (3) in the case of any other action shall not be
more than seventy days prior to such other action. If no record
date is fixed: (1) the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived,
at the close of business on the day next preceding the day on
which the meeting is held; (2) the record date for determining
stockholders entitled to express consent to corporate action in
writing without a meeting when no prior action of the Board of
Directors is required by law shall be the first date on which a
signed written consent setting forth the action taken or proposed
to be taken is delivered to the corporation in accordance with
applicable law, or, if prior action by the Board of Directors is
required by law, shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such
prior action; and (3) the record date for determining stockholders
for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating
thereto. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board
of Directors may fix a new record date for the adjourned meeting.
Section 1.9 Action by Consent of Stockholders. Unless
otherwise restricted by the certificate of incorporation, any
action required or permitted to be taken at any annual or special
meeting of stockholders may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting
forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes
that would be necessary to authorize to take such action at a
meeting at which all shares entitled to vote thereon were present
and voted. Prompt notice of taking of the corporate action
without a meeting by less than unanimous written consent shall be
given to those stockholders who have not consented in writing.
ARTICLE II
Board of Directors
Section 2.1 Number; Qualifications. The property interests,
business and transactions of the Corporation shall be managed and
conducted by the Board of Directors which shall consist of not
less than one (1), nor more than seven (7) persons, as shall be
fixed from time to time by the Board of Directors, as hereinafter
provided. The Board of Directors shall be elected annually by a
ballot of the holders of the shares of the Corporation entitled to
vote thereon for the term of one (1) year, and shall serve until
the election and qualification of their successors, unless they
sooner resign and are replaced as hereinafter provided. The
number of directors may be fixed or changed from time to time
within the range, set forth above, by the shareholders or the
Board of Directors. Directors need not be shareholders.
Section 2.2 Election; Resignation; Removal; Vacancies. At
the annual meeting of shareholders, the shareholders shall elect
directors, each of whom shall hold office for a term of one (1)
year or until their successors are elected and qualified. Any
director may resign at any time upon written notice to the
Corporation. Such resignation shall take effect at the time
specified therein; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective. Any newly created directorship or any vacancy
occurring in the Board of Directors for any cause may be filled by
the Board of Directors, or if the directors remaining in office
constitute fewer than a quorum of the Board, they may fill the
vacancy by the affirmative vote of the majority of all the
directors remaining in office or the shareholders may fill the
vacancy, and each director selected shall hold office until the
expiration of the term of office of the director whom he has
replaced or until his successor is elected and qualified.
Section 2.3 Regular Meetings. Regular meetings of the Board
of Directors may be held at such places within or without the
State of Nevada and at such times as the Board of Directors may
from time to time determine, and if so determined notices thereof
need not be given.
Section 2.4 Special Meetings. Special meetings of the Board
of Directors may be held at any time or place within or without
the State of Nevada whenever called by the President, any Vice
President, the Secretary, or by any member of the Board of
Directors. Notice of a special meeting of the Board of Directors
shall be given by the person or persons calling the meeting at
least twenty-four hours before the special meeting.
Section 2.5 Telephonic Meetings Permitted. Members of the
Board of Directors, or any committee designed by the Board of
Directors, may participate in a meeting thereof by means of
conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each
other, and participation in a meeting pursuant to this by-law
shall constitute presence in person at such meeting.
Section 2.6 Quorum; Vote Required for Action. At all
meetings of the Board of Directors a majority of the whole Board
of Directors shall constitute a quorum for the transaction of
business. Except in cases in which the certificate of
incorporation or these by-laws otherwise provide, the vote of a
majority of the directors present at a meeting at which a quorum
is present shall be the act of the Board of Directors.
Section 2.7 Organization. Meetings of the Board of Directors
shall be presided over by the Chairman of the Board, if any, or in
his absence by the Vice Chairman of the Board, if any, or in his
absence by the President, or in his absence by a chairman chosen
at the meeting. The Secretary shall act as secretary of the
meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 2.8 Informal Action by Directors. Unless otherwise
restricted by the certificate of incorporation or these by-laws,
any action required or permitted to be taken at any meeting of the
Board of Directors, or of any committee thereof, may be taken
without a meeting if all members of the Board of Directors or such
committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of
the Board of Directors or such committee.
ARTICLE III
Committees
Section 3.1 Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors,
designate one or more committees, each committee to consist of one
or more of the directors of the corporation. The Board of
Directors may designate one or more directors as alternate members
of any committee, who may replace 'any absent or disqualified
member at any meeting of the committee. In the absence or
disqualification of a member of the committee and the absence or
unavailability of any alternate member of the committee, the
member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or
disqualified member. Any such committee, to the extent permitted
by law and to the extent provided in the resolution of the Board
of Directors establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the corporation, and
may authorize the seal of the corporation to be affixed to all
papers which may require it.
Section 3.2 Committee Rules. Unless the Board of Directors
otherwise provides, each committee designated by the Board of
Directors may make, alter and repeal rules for the conduct of its
business. In the absence of such rules each committee shall
conduct its business in the same manner as the Board of Directors
conducts its business pursuant to Article III of these by-laws.
ARTICLE IV
Officers
Section 4.1 Executive Officers; Election; Qualifications;
Term of Office; Resignation; Removal; Vacancies. The Board of
Directors shall elect a President, Secretary and Treasurer, and it
may, if it so determines, choose a Chairman of the Board of a Vice
Chairman of the Board from among its members. The Board of
Directors may also choose one or more Vice Presidents, one or more
Assistant Secretaries and one or more Assistant Treasurers. Each
such officer shall hold office until the first meeting of the
Board of Directors after the annual meeting of stockholders next
succeeding his election, and until his successor is elected and
qualified or until his earlier resignation or removal. Any
officer may resign at any time upon written notice to the
corporation. The Board of Directors may remove any officer with
or without cause at any time, but such removal shall be without
prejudice to the contractual rights of such officer, if any, with
the corporation. Any number of offices may be held by the same
person. Any vacancy occurring in any office of the corporation by
death, resignation, removal or otherwise may be filled for the
unexpired portion of the term by the Board of Directors at any
regular or special meeting.
Section 4.2 Powers and Duties of Executive Officers. The
officers of the corporation shall have such powers and duties in
the management of the corporation as may be prescribed by the
Board of Directors and, to the extent not so provided, as
generally pertain to their respective offices, subject to the
control of the Board of Directors. The Board of Directors may
require any officer, agent or employee to give security for the
faithful performance of his duties.
ARTICLE V
Stock
Section 5.1 Certificates. Every holder of stock shall be
entitled to have a certificate signed by or in the name of the
corporation by the Chairman or Vice Chairman of the Board of
Directors, if any, or the President or a Vice President, and by
the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary, of the corporation, certifying the number of
shares of stock owned by him in the corporation. Any or all of
the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent, or registrar before
such certificate is issued, it may be issued by the corporation
with the same effect as if he were such officer, transfer agent,
or registrar at the date of issue.
Section 5.2 Lost, Stolen or Destroyed Stock Certificates;
Issuance of New Certificates. The corporation may issue a new
certificate of stock in the place of any certificate theretofore
issued by it and alleged to have been lost, stolen or destroyed.
The corporation may require the owner of the lost, stolen or
destroyed certificate, or his legal representative, to give the
corporation a bond sufficient to indemnify it against any claim
that may be made against it on account of the alleged loss, theft
or destruction of any such certificate or the issuance of such new
certificate.
ARTICLE VI
Indemnification
Section 6.1 Right to Indemnification. The corporation shall
indemnify and hold harmless, to the full extent permitted by
applicable law as amended or interpreted from time to time, any
person who it may indemnify pursuant to such laws. The
corporation shall be required to indemnify a person in connection
with a proceeding initiated by such person only if the proceeding
was authorized by the Board of Directors of the corporation.
Section 6.2 Prepayment of Expenses. The corporation shall
pay the expenses incurred in defending any proceeding in advance
of its final disposition, provided, however, that the payment of
expenses incurred by a director or officer in advance of the final
disposition of the proceeding shall be made only upon receipt of
an undertaking by the director of officer to repay all amounts
advanced if it should be ultimately determined that the director
or officer is not entitled to be indemnified under this Article or
otherwise.
Section 6.3 Claims. If a claim for indemnification or
payment of expenses under this Article is not paid in full within
sixty days after a written claim therefor has been received by the
corporation, the claimant may file suit to recover the unpaid
amount of such claim and, if successful in whole or in part, shall
be entitled to be paid the expense of prosecuting such claim. In
any such action the corporation shall have the burden of proving
that the claimant was not entitled to the requested
indemnification or payment of expenses under applicable law.
Section 6.4 Non-Exclusivity of Rights. The rights conferred
on any person by this Article VI shall not be exclusive of any
other rights which such person may have or hereafter acquire under
any statute, provision of the certificate of incorporation, these
by-laws, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 6.5 Other Indemnification. The corporation's
obligation, if any, to indemnify any person who was or is serving
at its request as a director, officer, employee or agent of
another corporation partnership, joint venture, trust, enterprise
or non-profit entity shall be reduced by any amount such person
may collect as indemnification from such other corporation,
partnership, joint venture, trust, enterprise or non-profit
enterprise.
Section 6.6 Amendment or Repeal. Any repeal or modification
of the foregoing provisions of this Article VI shall not adversely
affect any right or protection hereunder of any person in respect
of any act or omission occurring prior to the time of such repeal
or modification.
ARTICLE VII
Miscellaneous
Section 7.1 Fiscal Year. The fiscal year of the corporation
shall be determined by resolution of the Board of Directors.
Section 7.2 Seal. The corporate seal, if any, shall have the
name of the corporation inscribed thereon and shall be in such
form as may be approved from time to time by the Board of
Directors.
Section 7.3 Waiver of Notice of Meetings of Stockholders,
Directors and Committees. Any written waiver of notice, signed by
the person entitled to notice, whether before or after the time
stated therein, shall be deemed equivalent to notice. Attendance
of a person at a meeting shall constitute a waiver of notice of
such meeting, except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to
the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be
transacted at, nor the purpose of any regular or special meeting
of the stockholders, directors, or members of a committee of
directors need be specified in any written waiver of notice.
Section 7.4 Interested Directors; Quorum. No contract or
transaction between the corporation and one or more of its
directors or officers, or between the corporation and any other
corporation partnership, association, or other organization in
which one or more of its directors of officers are directors or
officers, or have a financial interest shall be void or voidable
solely for this reasons, or solely because the director or officer
is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for
such purpose, if: (1) the material facts as to his or their
relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee,
and the Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative votes of a majority
of the disinterested directors, even though the disinterested
directors be less than a quorum; or (2) the material facts as to
his relationship or interest and as to the contract or transaction
are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved
in good faith by a vote of the stockholders; or (3) the contract
or transaction is fair as to the corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a
committee thereof, or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum
at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
7.5 Form of Records. Any records maintained by the
corporation in the regular course of its business, including its
stock ledger, books of account and minute books, may be kept on,
or be in the form of, punch cards, magnetic tape, photographs,
microphotographs, or any other information storage device,
provided that the records so kept can be converted into a clearly
legible form within a reasonable time. The corporation shall so
convert any records so kept upon the request of any person
entitled to inspect the same.
7.6 Amendment of By-Laws. These by-laws may be altered or
repealed, and new by-laws made, by the Board of Directors, but the
stockholders may make additional by-laws and may alter and repeal
any by-laws whether adopted by them or otherwise.
