UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 14C/A INFORMATION Information Statement Pursuant to Section 14(c) of the Securities Exchange Act of 1934 Check the appropriate box: [X] Preliminary Information Statement [ ] Definitive Information Statement [ ] Confidential, For Use of the Commission Only (as permitted by Rule 14c-5(d)(2) PLATINA ENERGY GROUP, INC. (Name of Registrant as Specified in Its Charter) Payment of Filing Fee (Check the appropriate box) [X] No fee required. [ ] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11. (1) Title of each class of securities to which transaction applies: (2) Aggregate number of securities to which transaction applies: (3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): (4) Proposed maximum aggregate value of transaction: (5) Total fee paid: [ ] Fee paid previously with preliminary materials. [ ] Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the form or schedule and the date of its filing. (1) Amount previously paid: (2) Form, Schedule or Registration Statement No.: (3) Filing Party: (4) Date Filed:
INFORMATION STATEMENT Platina Energy Group, Inc. 1807 Capital Avenue, Suite 101 I Cheyenne, Wyoming 82001 Telephone:
(307) 637-3900
Facsimile: (480) 287-9560 This information statement is circulated to advise the shareholders of Platina Energy Group, Inc. (the "Company"
of an action to be taken without a meeting upon the written consent of the holders of a majority of the outstanding shares of the voting capital stock of the Company. Management is not soliciting proxies because a sufficient number of shares have provided written consent to the actions. WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY. The matter upon which action is being taken is: To amend the Company’s Certificate of Incorporation to increase the number of authorized shares of common stock from 100,000,000 shares to 500,000,000 shares without further action on the part of the shareholders. Shareholders holding shares representing 57 % of the votes entitled to be cast at a meeting of the Company's shareholders consented in writing to the proposed action. The approval by the shareholders to amend the Company’s Certificate of Incorporation to increase the number of authorized shares of common stock from 100,000,000 shares to 500,000,000 shares will not become effective until 10 days from the date of mailing of this Information Statement to our shareholders. The Company's Board of Directors approved the amendment to the Company’s Certificate of Incorporation to increase the number of authorized shares of common stock from 100,000,000 shares to 500,000,000 shares as noted above on December 19, 2007.
If the proposed action was not adopted by written consent of a majority of the shareholders, it would have been necessary for these actions to be considered by the Company's shareholders at a Special Shareholders’ Meeting convened for the specific purpose of approving the actions. The elimination of the need for a special meeting of the shareholders to approve the actions is authorized by Section 228 of the Delaware General Corporation Law of (the "Delaware Law"
. This Section provides that action may be taken by the written consent of the holders of outstanding shares of voting capital stock, having not less than the minimum number of votes which would be necessary to authorize or take the action at a meeting at which all shares entitled to vote on a matter were present and voted. According to Section 242(b) of the Delaware Law, a majority of the outstanding shares of voting capital stock entitled to vote on the matter is required in order to take the contemplated action. In order to effect the amendment of the Certificate of Incorporation to increase the number of authorized shares of common stock from 100,000,000 to 500,000,000 shares as early as possible in order to accomplish the purposes of the Company, the Company utilized the written consent of the majority of the shareholders of the Company. The date on which this Information Statement will be sent to the shareholders is on, or about February 18, 2008. The record date established by the Company for purposes of determining the number of outstanding shares of voting capital stock of the Company was December 19, 2007, (the "Record Date"
.
The following is the text of the amendment to the Certificate of Incorporation which shall replace the first paragraph of Article V in its entirety:
Article V Capital 1. The aggregate number of shares which this Corporation shall have authority to issue is: Five Hundred Twenty Million (520,000,000) shares of which Five Hundred Million (500,000,000) shares shall be Common Stock, each with a par value of one tenth cent ($.001) per share and Twenty Million (20,000,000) shares shall be Preferred Shares, each with a par value of one tenth cent ($.001) per share.”
OUTSTANDING VOTING STOCK OF THE COMPANY
As of the Record Date and as of the date hereof there were 60,979,158 shares and 99,697,908 shares, respectively, of Common Stock issued and outstanding. The Common Stock constitutes the outstanding class of voting securities of the Company. Each share of Common Stock entitles the holder to one (1) vote on all matters submitted to the shareholders. None of the persons who have been directors or officers of the Company at any time since the beginning of the last fiscal year, nor any associate of any such persons, has any interest in the matters to be acted upon. No director of the Company has informed the Company in writing that he intends to oppose any action to be taken by the Company. No proposals have been received from security holders.
SECURITY OWNERSHIP OF MANAGEMENT AND PRINCIPAL SHAREHOLDERS
The table below set forth information, as of the Record Date of December 19, 2007, with respect to the number and percentage of outstanding shares of Company Common Stock and Series A, B and C Preferred Stock owned by (i) each person known to the Company to beneficially own more than 5% of each class of stock, (ii) each director, (iii) each named executive officer, and (iv) all executive officers and directors as a group. The following calculations are made according to the rules of the Securities and Exchange Commission. Share ownership is deemed to include all shares that may be acquired through the exercise or conversion of any other security immediately or within the next sixty days. Such shares that may be so acquired are also deemed outstanding for purposes of calculating the percentage of ownership for that individual or any group of which that individual is a member. Shares outstanding were determined as of December 19, 2007.
Name and Address of Beneficial Owner Number of Shares Beneficially Owned Percentage of Ownership Blair J. Merriam (1) PO Box 3235 Cheyenne, WY 82003 Common 5,205,457 (1) 8.5 % Daniel W. Thornton (2) 4255 S. Bannock St. Englewood, CO 80110 Common 1,612,500 (2) 2.6 % Joseph F. Langston, Jr. 10210 Highway 243 Kaufman, TX 75142 Common 353,571 0.006 % All directors and executive officers as a group (3 persons) Common Series A Series B Series C 7,171,528 0 0 0 11.8 % 0 % 0 % 0 % (1) Includes 2,000,000 shares that may be acquired directly pursuant to the exercise of options. (2) Includes 750,000 shares that may be acquired directly pursuant to the exercise of options. Preferred Stock As of December 19, 2007 there were no shares of preferred stock beneficially owned by directors or officers. NO DISSENTER'S RIGHTS Under applicable Delaware Law, any dissenting shareholders are not entitled to dissenter rights with respect to the amendment to the Company’s Certificate of Incorporation, and we will not independently provide shareholders with any such right.
REASON FOR THE INCREASE IN THE NUMBER OF AUTHORIZED SHARES OF COMMON STOCK To obtain funding for our ongoing operations, on August 30, 2007 we entered into a Securities Purchase Agreement (La Jolla Securities Purchase Agreement&rdquo
with La Jolla Cove Investors, Inc. (“La Jolla&rdquo
, to (i) sell to La Jolla a 7 ¼ % Convertible Debenture (“La Jolla Debenture&rdquo
for $300,000 with a maturity date of August 30, 2010 if not earlier converted by the holder into shares of our Common Stock and (iii) issue to La Jolla a Warrant to Purchase Common Stock (“La Jolla Warrant&rdquo
to purchase shares of the Company’s Common Stock to raise up to an additional $3,000,000 with an expiration date of August 30, 2010. The total principal balance of the Notes as of February 6, 2008 is $4,364,420 (the convertible notes are collectively referred to as the "Notes"
. The La Jolla Debenture is convertible into the number of shares of Common Stock, at the Holders option, equal to the dollar amount of the Debenture being converted multiplied by eleven, minus the product of the Conversion Price multiplied by ten times the dollar amount of the Debenture being converted, and the entire foregoing result shall be divided by the Conversion Price. The “Conversion Price” shall be equal to the lesser of (i) $1.00 , or (ii) 80% of the average of the 3 lowest closing prices (“Closing Price&rdquo
during the 20 Trading Days prior to Holder’s election to convert (the percentage figure being a “Discount Multiplier&rdquo
. Notwithstanding the foregoing, beginning in the first full calendar month after the Closing Date, Holder shall convert at least 10% but not more than 15% of the face value of the Debenture per calendar month into Common Shares of the Company, provided that the Common Shares are available, registered and freely tradable. If Holder converts more than 10% of the face value of the Debenture in any calendar month, the excess over 10% shall be credited against the next month’s minimum conversion amount. La Jolla has contractually agreed to restrict their ability to convert or exercise their warrants and receive shares of Common Stock such that the number of shares of Common Stock held by them and their affiliates after such conversion or exercise does not exceed 4.99% of the then issued and outstanding shares of Common Stock. The La Jolla Warrant provides for the purchase of 3,000,000 shares of Common Stock at an exercise price of $1,00 per share and requires that upon each conversion of any portion of the Principal Amount outstanding under the Debenture, the Holder will simultaneously exercise a percentage of the Warrant that is equal to the percentage of the Principal Amount of the Debenture being so converted by Holder.
To obtain additional funding for our ongoing operations, on January 9, 2008, we completed a $1,500,000 financing pursuant to a Securities Purchase Agreement dated effective December 31, 2007 (“Trafalgar Securities Purchase Agreement&rdquo
with Trafalgar Capital Specialized Fund, Luxembourg (“Trafalgar&rdquo
for Trafalgar to loan $1,500,000 to the Company (the “Loan&rdquo
pursuant to a secured Promissory Note (the “Note&rdquo
dated December 31, 2007. The Holder of the Note may convert all or any part of the principal plus accrued interest into shares of the Company’s Common Stock at the fixed price of $.17 per share, subject to various adjustments, if our Common Stock is trading at $.40 or above. We are obligated by the terms of the La Jolla Securities Purchase Agreement and the Trafalgar Securities Purchase Agreement to have available sufficient shares of our Common Stock for the exercise of the La Jolla Debenture and La Jolla Warrant and the conversion of the Trafalgar Note. We believe that we presently do not have an adequate amount of shares of Common Stock authorized to meet our obligations to La Jolla and Trafalgar as well as to maintain a sufficient number of authorized but unissued shares issuable for future financings, business acquisitions, and general corporate purposes. If we were unable to obtain an increase in our authorized Common Stock, we would be in default of the La Jolla and Trafalgar Securities Purchase Agreements. If we are in default, we could be required to immediately repay the Debenture and Note. If we are required to repay the Debenture and Note, we would be required to use our limited working capital and raise additional funds. If we were unable to repay the Debenture and Note when required, La Jolla and Trafalgar could commence legal action against us and Trafalgar could foreclose on all of our assets to recover the amounts due. Any such actions would require us to curtail or cease operations. In addition, we currently have an aggregate of 163,655 shares of Preferred Stock outstanding with conversion rights to 16,365,500 shares of our Common Stock. There currently are insufficient shares of Common Stock available for such conversion. Our Certificate of Incorporation, as amended, authorizes us to issue up to 100,000,000 shares of our common stock. Currently we have 99,697,908 shares issued and outstanding.
The purpose of the amendment to the Company’s Certificate of Incorporation to increase the number of authorized shares of common stock is to have sufficient shares of Common Stock available to comply with previous financing obligations and conversion of Preferred Stock as set forth ablove and to have additional authorized shares of Common Stock available for possible future financing, for possible acquisition transactions, to provide equity incentives to employees, officers and consultants, and other general corporate purposes. Management believes that having such additional authorized shares of Common Stock available for issuance in the future would give the Corporation greater flexibility and may allow such shares to be issued without the expense and delay of a special shareholders’ meeting. Other than as described above, our Board of Directors has no present agreement, arrangement or commitment to issue any of the shares for which approval would be sought.
EFFECTS OF THE PROPOSAL
The increase in the authorized shares of our Common Stock will not have any immediate effect on the rights of existing stockholders. However, our Board of Directors will have the authority to issue authorized shares of Common Stock without requiring future stockholder approval of such issuances, except as may be required by applicable law or regulations, the Company’s governing documents, or the rules of any stock exchange, NASDAQ or any automated inter-dealer quotation system on which the Company’s Common Stock may then be traded. The Company’s stockholders could therefore experience a reduction in their ownership interest in the Company with respect to earnings per share (if any), voting, liquidation value, and book and market value if the additional authorized shares are issued. The holders of our Common Stock have no preemptive rights, which means that current stockholders do not have a prior right to purchase any new issue of Common Stock in order to maintain their proportionate ownership in the Company. Our Board of Directors has no plans to grant preemptive rights with respect to any of the newly-authorized shares.
Although the Board of Directors will authorize the issuance of additional shares of Common Stock or instruments into which the Common Stock is exercisable or convertible for only when it considers doing so to be in the best interests of stockholders, the availability for issuance of additional shares of Common Stock could also enable the Board of Directors to render more difficult or discourage an attempt to obtain control of the Company through, for example, a proposed merger, tender offer or proxy contest. Neither management nor the Board of Directors is aware of any planned effort on the part of any party to accumulate material amounts of Common Stock or to acquire control of the Company by means of a merger, tender offer, proxy contest or otherwise, or to change the Company’s management. As a matter of regulatory compliance, we are sending you this Information Statement, which provides you with information about this corporate action. Your consent to the action is not required and is not being solicited. This Information Statement is intended to provide our shareholders information required by the rules and regulations of the Securities Exchange Act of 1934. WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY. THE ATTACHED MATERIAL IS FOR INFORMATIONAL PURPOSES ONLY.
Financial Statements and Exhibits.
(a) Financial Statements: Not Applicable (b) Pro Forma Financial Information: Not Applicable (c) Exhibits
Exhibit No. Description Exhibit 3.1 Certificate of Incorporation and Amendments thereto (incorporated by reference to Exhibit 2.1 to the Registrant’s Registration Statement on Form 10SB (No. 000-28335) Exhibit 3.2 Certificate of Amendments to Certificate of Incorporation (incorporated by reference to Exhibit 1 to the Registrant’s Form 10-KSB on Form 10SB for the fiscal year ended March 31, 2002 (No. 000-28335) Exhibit 3.3 Certificate of Amendments to Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Registrant’s Form 8-K filed on June 20, 2005 (No. 000-28335) Exhibit 3.4 Designation of Rights and Preferences of Series B preferred Stock Exhibit 3.5 Designation of Rights and Preferences of Series C Preferred Stock Exhibit 3.6 Bylaws (incorporated by reference to Exhibit 2.1 to the Registrant’s Registration Statement on Form 10SB (No. 000-28335) Exhibit 3.7 Amended and Restated Bylaws
By Order of the Board of Directors
/s/ Blair Merriam Blair Merriam, Chief Executive Officer
February 11, 2008
AMENDED AND RESTATED BYLAWS OF PLATINA ENERGY GROUP, INC. a Delaware corporation
(Effective December 18, 2007) TABLE OF CONTENTS
b Page ARTICLE I Offices Section 1. Registered Office Section 2. Other Offices ARTICLE II Meetings of Stockholders Section 1. Place of Meetings Section 2. Annual Meetings Section 3. Special Meetings Section 4. Quorum Section 5. Voting Section 6. List of Stockholders Entitled to Vote Section 7. Stock Ledger Section 8. Notice of Business Section 9. Election Inspections Section 10. Organization and Conduct of Meetings Section 11. Action by Written Consent ARTICLE III Directors Section 1. Number and Election of Directors Section 2. Vacancies Section 3. Duties and Powers Section 4. Meetings Section 5. Quorum Section 6. Actions of Board Section 7. Meetings by Means of Conference Telephone Section 8. Committees Section 9. Compensation Section 10. Interested Directors ARTICLE IV Officers Section 1. General Section 2. Election and Compensation Section 3. Voting Securities Owned by the Corporation Section 4. Chairman of the Board of Directors Section 5. President Section 6. Vice Presidents Section 7. Secretary Section 8. Treasurer Section 9. Assistant Secretaries Section 10. Assistant Treasurers Section 11. Other Officers ARTICLE V Stock Section 1. Form of Certificates Section 2. Signatures Section 3. Lost Certificates Section 4. Transfers Section 5. Record Date Section 6. Beneficial Owners ARTICLE VI Notices Section 1. Notices Section 2. Waivers of Notice ARTICLE VII General Provisions Section 1. Dividends Section 2. Disbursements Section 3. Fiscal Year Section 4. Corporate Seal Section 5. Gender ARTICLE VIII Indemnification Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in the Right of the Corporation Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation Section 3. Authorization of Indemnification Section 4. Good Faith Defined Section 5. Indemnification by a Court Section 6. Expenses Payable in Advance Section 7. Nonexclusivity of Indemnification and Advancement of Expenses Section 8. Insurance Section 9. Certain Definitions Section 10. Survival of Indemnification and Advancement of Expenses Section 11. Limitation on Indemnification Section 12. Indemnification of Employees and Agents ARTICLE IX Miscellaneous Section 1. Amendment of Bylaws Section 2. Entire Board of Directors 1
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15 AMENDED AND RESTATED BYLAWS OF PLATINA ENERGY GROUP, INC.
(hereinafter called the “Corporation&rdquo
ARTICLE I Offices
Section 1. Registered Office. The registered office of the Corporation shall be maintained in the State of Delaware and may be changed from time to time by the Board of Directors.
Section 2. Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine.
ARTICLE II Meetings of Stockholders
Section 1. Place of Meetings. Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware, as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on such date and at such time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which meetings the stockholders shall elect, in accordance with Section 1 of Article III of these Bylaws, by a majority vote, those Directors belonging to the class or classes of directors to be elected at such meeting, and transact such other business as may properly be brought before the meeting. Written notice of the Annual Meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days before the date of the meeting.
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Section 3. Special Meetings. Unless otherwise prescribed by law or by the Certificate of Incorporation, as the same may be amended from time to time, Special Meetings of Stockholders may be called only by the Chairman of the Board, if there be one, the President, the Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors (whether or not there exist any vacancies in previously authorized directorships at the time any such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at the time of such call for a special meeting, of ten percent (10%), or more, of the issued and outstanding common stock of the Corporation. Written notice of a Special Meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called shall be given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Certificate of Incorporation, as the same may be amended from time to time, the holders of a majority of the capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30) 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 entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question brought before any meeting of stockholders shall be decided by the vote of the holders of a majority of the stock represented and entitled to vote thereat, and (ii) each stockholder represented at a meeting of stockholders shall be entitled to cast one vote for each share of the capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy shall be voted on or after three years from its date, unless such proxy provides for a longer period. The Board of Directors, in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes cast at such meeting shall be cast by written ballot.
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Section 6. List of Stockholders Entitled to Vote. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.
Section 8. Notice of Business. At any meeting of stockholders, only such business shall be conducted as shall have been brought before the meeting (i) by or at the direction of the Board of Directors, or (ii) by any stockholder of the Corporation who is a stockholder of record at the time of giving of the notice provided for in this Section 8 of this Article II, who shall be entitled to vote at such meeting and who complies with the notice procedures set forth in this Section 8 of this Article II. For business to be properly brought before a meeting of stockholders by a stockholder, the stockholder shall have given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a stockholder’s notice shall be delivered to or mailed and received at the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred twenty (120) days prior to the meeting; provided, however, that in the event that less than one hundred (100) days’ notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so received not later than the close of business on the tenth (10th) day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made, whichever first occurs. Such stockholder’s notice to the Secretary shall set forth as to each matter the stockholder proposes to bring before the meeting (a) a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and, in the event that such business includes a proposal to amend either the Certificate of Incorporation or Bylaws of the Corporation, the language of the proposed amendment, (b) the name and address, as they appear on the Corporation’s books, of the stockholder proposing such business, (c) the class and number of shares of capital stock of the Corporation which are beneficially owned by such stockholder, and (d) any material interest of such stockholder in such business. Notwithstanding anything in the Bylaws to the contrary, no business shall be conducted at a stockholder meeting except in accordance with the procedures set forth in this Section 8 of this Article II. The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the provisions of the Bylaws, and if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. Notwithstanding the foregoing
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provisions of this Section 8 of this Article II, a stockholder shall also comply with all applicable requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder with respect to the matters set forth in this Section 8 of this Article II.
Section 9. Election Inspections. Prior to any meeting of the stockholders, the Board of Directors shall appoint one (1) or more inspectors who shall ascertain the number of shares outstanding and the voting power of each; determine the shares represented at a meeting and the validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable time period a record of the disposition of any challenges made to any determination by the inspectors; certify the determination of the number of shares represented at the meeting, and the count of all votes and ballots; and perform such other duties and actions as may be requested by the Board of Directors or required by law. No such election inspector need be a stockholder of the Corporation.
Section 10. Organization and Conduct of Meetings. Each meeting of the stockholders shall be called to order and thereafter chaired by the Chairman of the Board of Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the President; or if both the Chairman of the Board and the President are unavailable, then by such other officer of the Corporation or such stockholder as may be appointed by the Board of Directors. The Corporation’s Secretary shall act as secretary of each meeting of the stockholders; in the Secretary’s absence, the chairman of the meeting may appoint any person (whether a stockholder or not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to any state law restrictions or requirements, the chairman of a meeting shall, among other things, have absolute authority to fix the period of time allowed for the registration of stockholders and the filing of proxies, to determine the order of business to be conducted at such meeting and to establish reasonable rules for expediting the business of the meeting (including any informal, or question and answer portions thereof).
Section 11. Action by Written Consent. Any action required or permitted to be taken by the stockholders of the Corporation may be effected either at an Annual or Special Meeting of the stockholders of the Corporation or by written consent of the stockholders beneficially owning the number of shares necessary to approve such action pursuant to the Delaware General Corporation Law or these Bylaws.
ARTICLE III Directors
Section 1. Number and Election of Directors. The business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors consisting of not less than one (1) nor more than nine (9) directors, the exact number of directors to be determined from time to time by resolution adopted by the affirmative vote of a majority of the directors then in office. Directors shall be elected at each Annual Meeting of Shareholders and shall serve until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, disqualification or removal from office.
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Directors of the Corporation may be removed with or without cause by the affirmative vote of not less than sixty-six and two-thirds percent (66 2/3%) of the votes entitled to be cast by the holders of all the then issued and outstanding shares of common stock of the Corporation.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from an increase in the number of directors may be filled by a majority of the Board of Directors then in office, provided that a quorum is present, and any other vacancy occurring in the Board of Directors may be filled by a majority of the directors then in office, even if less than a quorum, or by a sole remaining director. Any director of any class elected to fill a vacancy resulting from an increase in the number of directors in such class shall hold office for a term that shall coincide with the remaining term of that class. Any director elected to fill a vacancy not resulting from an increase in the number of directors shall have the same remaining term as that of his predecessor.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the Board of Directors may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors. Special meetings of the Board of Directors may be called by the Chairman, if there be one, the President or any one (1) director. Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone, electronic facsimile or telegram on twenty-four (24) hours’ notice, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law, the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, 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 a majority of the members of the Board of Directors or 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 committee.
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Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, members of the Board of Directors of the Corporation, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of a 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 Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may designate one (1) or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one (1) or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, 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 the place of any absent or disqualified member. Any committee, to the extent allowed by law and provided in the resolution 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. Each committee shall keep regular minutes and report to the Board of Directors when required. The Board shall have the power at any time to change the members of any such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as a director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Directors who are not also employees of the Corporation may receive stock options. Members of special or standing committees may be allowed like compensation for attending committee meetings.
Section 10. Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose if (i) 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 (ii) 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 stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to
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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.
ARTICLE IV Officers
Section 1. General. The officers of the Corporation shall be chosen by the Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a director), a Treasurer and one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any number of offices, including President and Secretary, may be held by the same person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as the same may be amended from to time. The officers of the Corporation need not be stockholders of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first meeting held after each Annual Meeting of Stockholders, shall elect the officers of the Corporation, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors; and all officers of the Corporation shall hold office until their successors are chosen and qualified, or until their earlier resignation or removal. Any officer elected by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented from receiving a salary by reason of the fact that such officer is also a director of the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the President or any Vice President, and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and powers incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of Directors, if there be one, shall preside at all meetings of the stockholders and of the Board of Directors. Except where by law the signature of the President is required, the Chairman of the Board of Directors shall possess the same power as the President to sign all contracts, certificates
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and other instruments of the Corporation which may be authorized by the Board of Directors. During the absence or disability of the President, the Chairman of the Board of Directors shall exercise all the powers and discharge all the duties of the President. The Chairman of the Board of Directors shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by these Bylaws or by the Board of Directors.
Section 5. President. The President shall, subject to the control of the Board of Directors and, if there be one, the Chairman of the Board of Directors, have general supervision of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. The President shall execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except that the other officers of the Corporation may sign and execute documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors, or the President. In the absence or disability of the Chairman of the Board of Directors, or if there be none, the President shall preside at all meetings of the stockholders and the Board of Directors. The President shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence or in the event of his inability or refusal to act (and if there be no Chairman of the Board of Directors), the Vice President or the Vice Presidents if there be more than one (in the order designated by the Board of Directors) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Each Vice President shall perform such other duties and have such other powers as the Board of Directors from time to time may prescribe. If there be no Chairman of the Board of Directors and no Vice President, the Board of Directors shall designate the officer of the Corporation who, in the absence of the President or in the event of the inability or refusal of the President to act, shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of stockholders and record all the proceedings thereat in a book or books to be kept for that purpose; the Secretary shall also perform like duties for the standing committees when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the stockholders and special meetings of the Board of Directors, and if there be no Assistant Secretary, then either the Board of Directors or the President may choose another officer to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant
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Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. 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, and shall render to the President and the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors so requires, an account of all his transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors 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.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these Bylaws, Assistant Secretaries, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if there be any appointed, or the Secretary, and in the absence of the Secretary or in the event of his disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board, of Directors, the Chairman of the Board of Directors, the President, any Vice President, if there be any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors 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 6r under his control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers.
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ARTICLE V Stock
Section 1. Form of Certificates. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation (i) by the Chairman of the Board of Directors, the President or a Vice President and (ii) by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by him in the Corporation. <
