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NORTIA CAPITAL PARTNERS, INC. - 8-K - 20041209 - CHANGE_IN_ASSETS
Item 2.01. Completion of Acquisition or Disposition of Assets
(a) Pursuant to the Share Exchange Agreement (the "Exchange
Agreement") entered into on October 15, 2004, among Nortia
Capital Partners, Inc., a Florida corporation ("Nortia Florida"),
Nortia Capital Partners, Inc., a Nevada corporation ("Nortia
Nevada"), and each Nortia Florida shareholder. On December 2,
2004, Nortia Nevada completed the transactions contemplated by
the Exchange Agreement and acquired 8,675,000 shares of Nortia
Florida, which represented 100% of the issued and outstanding
shares of capital stock of Nortia Florida. Shareholders of Nortia
Florida received an aggregate of 8,675,000 newly issued shares of
Nortia Nevada common stock, through a one-for-one share exchange
of Nortia Florida's common stock for Nortia Nevada's common stock
(the "Exchange Transaction"). Giving effect to the Exchange
Transaction, there were 10,580,000 shares of Nortia Nevada common
stock outstanding, approximately 82% of which were held by Nortia
Florida's historic shareholders; and Nortia Florida became a
wholly owned subsidiary of Nortia Nevada.
(b) Pursuant to Rule 12g-3, promulgated under the Securities Exchange
Act of 1934, Nortia Nevada is the successor issuer to Nortia
Florida. Nortia Florida's common stock was registered under
Section 12(g) of the Securities Exchange Act at the effective
time of the Exchange Transaction. Accordingly, the Nortia
Nevada's common stock is deemed to be registered, by operation of
law, under Section 12(g) of the Securities Exchange Act as of the
closing of the Exchange Transaction. This Form 8-K is being filed
by Nortia Nevada as a successor issuer as required by paragraph
(f) of Rule 12g-3.
(c) In addition to Nortia Nevada being the successor issuer to Nortia
Florida, Nortia Nevada has also assumed and adopted Nortia
Florida's entire business plan, and will continue to operate
pursuant to that plan.
(d) Upon the closing of the Exchange Transaction, Nortia Florida's
board of directors, comprised of William J. Bosso, Matthew T.
Henninger, Harrysen Mittler, J.P. Baron and John Benton, were
named to Nortia Nevada's board of directors. Nortia Nevada's
previous sole board member, Michael E. Marshall, agreed to
continue to serve on Nortia Nevada's board of directors. Nortia
Nevada's board of directors is now comprised of William J. Bosso,
Matthew T. Henninger, Harrysen Mittler, J.P. Baron, John Benton
and Michael E. Marshall. (See also the disclosure provided in
Section 5.01.). Additionally, Michael E. Marshall resigned as an
officer of Nortia Nevada and William J. Bosso was appointed chief
executive officer, Matthew T. Henninger was appointed president
and secretary, and Harrysen Mittler was appointed chief financial
officer of Nortia Nevada. As of the closing of the Exchange
Transaction, the board of directors and officers of Nortia
Florida remained unchanged.
(e) Each newly appointed Nortia Nevada officer received 100,000
shares of Nortia Nevada convertible preferred A stock upon their
appointment, which occurred approximately 10 days prior to the
effective date of the Exchange Transaction. Each share of this
preferred stock is convertible into one (1) share of Nortia
Nevada common stock at the option of its holder at any time,
except that such shares shall convert automatically on the date
that is two years from the preferred stock's date of issuance.
Each preferred A share has voting rights equivalent to ten (10)
times the number of shares of common stock into which each such
preferred A share shall convert, and are entitled to a dividend
on a pari passu basis with the holders of common shares and other
classes of preferred shares of Nortia Nevada. Each preferred A
share has a liquidation preference equal to $.10.
(f) Pursuant to the Agreement and Plan of Merger (the "Merger
Agreement") entered into on December 3, 2004, between Nortia
Florida and Nortia Nevada, on December 6, 2004, Nortia Florida
(the wholly owned subsidiary of Nortia Nevada) merged with and
into Nortia Nevada and disappeared by virtue of a parent-
subsidiary statutory merger, with Nortia Nevada being the
survivor. All of the shares of capital stock of Nortia Florida
were retired by virtue of the merger; and Nortia Nevada's total
issued and outstanding shares decreased by 150,000 shares as a
result of these shares being held by Nortia Florida at the
effective time of the merger (the "Merger Transaction"). Giving
effect to the Merger Transaction, there were 10,430,000 shares of
Nortia Nevada common stock outstanding. Nortia Nevada is
currently quoted on the OTC Pink Sheets under the symbol: NCPN.
(g) Additionally, as a result of the Merger Transaction, Nortia
Nevada acquired all of Nortia Florida's rights, privileges,
immunities, and franchises, and Nortia Nevada is responsible and
liable for all of Nortia Florida's liabilities and obligations.
(h) As discussed above, Nortia Nevada has assumed and adopted Nortia
Florida's business plan, and will continue to operate pursuant to
Nortia Florida's business plan to operate as a business
development company pursuant to the Investment Company Act of
1940. In furtherance of that plan, Nortia Nevada intends to file
its Form N-54A with the United States Securities and Exchange
Commission ("SEC" or "Commission") in the near future, whereby it
will elect to be governed as a business development company
pursuant to the Investment Company Act of 1940.
(i) Since the Exchange Transaction and Merger Transaction constitute
a recapitalization transaction for accounting purposes, pro forma
financial statements are not included in this Form 8-K.
Additional information regarding Nortia Florida, its financial
statements and related information, including its business plan,
can be found at the SEC's website at www.sec.gov. Additional
information regarding Nortia Nevada is contained herein.
Item 3.03. Material Modification to Rights of Security Holders
As a result of the closing of the Exchange Transaction on
December 2, 2004, Nortia Florida's shareholders exchanged their
8,675,000 shares of Nortia Florida's common stock for an equivalent
number of shares of Nortia Nevada's common stock. Nortia Nevada was
organized pursuant to Nevada's Revised Statutes, while Nortia Florida
was organized pursuant to the Florida Business Corporation Act. As a
result, each of Nortia Florida's former shareholders now holds
securities of a corporation subject to the Nevada Revised Statutes,
Nortia Nevada's Amended and Restated Articles of Incorporation, and
Nortia Nevada's Bylaws and is no longer governed by the Florida
Business Corporation Act, Nortia Florida's Articles of Incorporation,
or Nortia Florida's Bylaws. Nortia Nevada's Amended and Restated
Articles of Incorporation and Bylaws are attached as exhibits pursuant
to Item 9.01 below.
Item 5.02. Departure of Directors or Principal Officers; Election of
Directors; Appointment of Principal Officers.
As described in Item 2.01(d), upon the closing of the Exchange
Transaction, Michael E. Marshall agreed to continue to serve on Nortia
Nevada's board of directors. Additionally, on December 6, 2004, Nortia
Nevada appointed Mr. John A. Van Tuin to its board of directors in
order to comply with applicable Investment Company Act requirements
regarding disinterested directors. Neither Mr. Marshall nor Mr. Van
Tuin was elected as a director by a vote of security holders at an
annual meeting or special meeting convened for such purpose, but
instead were properly appointed by the Nortia Nevada board of
directors. Mr. Van Tuin was granted 125,000 shares of Nortia Nevada's
common stock in exchange for serving on its board of directors.
Item 8.01. Other Events.
Additional Information
Security Ownership Of Certain Beneficial Owners and Management.
The following table sets forth, as of the date hereof, the names,
addresses, amount and nature of beneficial ownership and percent of
such ownership of each person or group known to the Nortia Nevada to
be the beneficial owner of more than five percent (5%) of Nortia
Nevada's common stock:
Name and Address Amount and Nature Percent
of Beneficial Owner of Beneficial Ownership of Class(1)
William J. Bosso 3,000,000 (2) 28.42%
400 Hampton View Court
Alpharetta, Georgia 30004
Harrysen Mittler 1,850,000 (2) 17.52%
6-2400 Dundas Street West
#139 Mississauga
Ontario, Canada L5K 2R8
Matthew T. Henninger 1,850,000(2) 17.52%
555 West 5th Street
30th Floor
Los Angeles, CA 90013
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1. Based upon 10,555,000 shares of Common stock outstanding as of
December 6, 2004.
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2. Does not include 100,000 shares of convertible preferred A stock
that are convertible into an equivalent number of shares of
common stock and that have voting rights equivalent to ten (10)
times the number of shares of common stock into which the
convertible preferred A shares are convertible.
The following table sets forth, as of the date hereof, the names,
addresses, amount and nature of beneficial ownership and percent of
such ownership of Nortia Nevada's common stock of each of the officers
and directors of Nortia Nevada, and the officers and directors of
Nortia Nevada as a group:
Name and Address Amount and Nature Percent
of Beneficial Owner of Beneficial Ownership of Class(1)
William J. Bosso 3,000,000 (2) 28.42%
400 Hampton View Court
Alpharetta, GA 30004
Harrysen Mittler 1,850,000 (2) 17.53%
6-2400 Dundas Street West
#139 Mississauga
Ontario, Canada L5K 2R8
Matthew T. Henninger 1,850,000 (2) 17.53%
555 West 5th Street
30th Floor
Los Angeles, CA 90013
John W. Benton, III 250,000 2.36%
4609 Village Green Drive
Roswell, GA 30075
J.P. Baron, II 250,000 2.36%
701 Rossland Road East, Suite 382
Whitby, Ontario, Canada L1N9K3
Michael E. Marshall 126,581 1.2%
6524 Elizan Drive NW,
Olympia, WA 98502
John A. Van Tuin 125,000 1.2%
255 Huguenot Street, #202
New Rochelle, NY 10801
All Officers and Directors
as a Group (7 persons). 7,451,581 70.6%
_________________________________________________________________________
1. Based upon 10,555,000 shares of common stock outstanding as of
December 6, 2004.
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2. Does not include 100,000 shares of convertible preferred A stock
that are convertible into an equivalent number of shares of
common stock and that have voting rights equivalent to ten (10)
times the number of shares of common stock into which the
convertible preferred A shares are convertible.
Nortia Nevada currently has no securities authorized for issuance
under any equity compensation plans.
Description of Capital Stock
Nortia Nevada is authorized to issue 50,000,000 shares of $.001
par value common stock and 5,000,000 shares of $.001 par value
preferred stock. As of December 6, 2004, 10,555,000 shares of Nortia
Nevada common stock were issued and outstanding, held of record by
approximately 300 persons, and 300,000 shares of Nortia Nevada
preferred stock were issued and outstanding, designated as convertible
preferred A stock, held of record by three persons.
Each stockholder of Nortia Nevada common stock is entitled to a
pro rata share of cash distributions made to stockholders, including
dividend payments. The holders of Nortia Nevada common stock are
entitled to one vote for each share of record on all matters to be
voted on by stockholders. There is no cumulative voting with respect
to the election of Nortia Nevada directors or any other matter.
Therefore, the holders of more than 50% of the shares voted for the
election of those directors can elect all of the directors. The
holders of Nortia Nevada common stock are entitled to receive
dividends when, as and if declared by Nortia Nevada Board of Directors
from funds legally available therefor. Cash dividends are at the sole
discretion of Nortia Nevada's board of directors. In the event of
Nortia Nevada's liquidation, dissolution or winding up, the holders of
common stock are entitled to share ratably in all assets remaining
available for distribution to them after payment of Nortia Nevada
liabilities and after provision has been made for each class of stock,
if any, having any preference in relation to Nortia Nevada common
stock. (See immediately following paragraph for a description of the
liquidation preferences of the convertible preferred A stock.) Holders
of shares of Nortia Nevada common stock have no conversion, preemptive
or other subscription rights, and there are no redemption provisions
applicable to the Nortia Nevada common stock.
Each share of convertible preferred A stock is convertible into
one (1) share of common stock at the option of its holder at any time,
except that such shares shall convert automatically on the date that
is two years from the preferred stock's date of issuance. Each share
of convertible preferred A stock has voting rights equivalent to ten
(10) times the number of shares of common stock into which each such
preferred stock shall convert, and are entitled to a dividend on a
pari passu basis with the holders of common shares and other classes
of preferred shares of Nortia Nevada. Each convertible preferred A
share has a liquidation preference equal to $.10.
Penny Stock Regulations and Restrictions on Marketability
The Commission has adopted regulations which generally define
"penny stock" to be any equity security that has a market price (as
defined) less than $5.00 per share or an exercise price of less than
$5.00 per share, subject to certain exceptions. Nortia Nevada's common
stock may be covered by the penny stock rules, which impose additional
sales practice requirements on broker-dealers who sell such securities
to persons other than established customers and accredited investors
(generally institutions with assets in excess of $5,000,000 or
individuals with net worth in excess of $1,000,000 or annual income
exceeding $200,000 or $300,000 jointly with their spouse). For
transactions covered by the rule, the broker-dealers must make a
special suitability determination for the purchase and receive the
purchaser's written agreement of the transaction prior to the sale.
Consequently, the rule may affect the ability of broker-dealers to
sell Nortia Nevada common stock and also may affect the ability of
Nortia Nevada stockholders to sell their shares of common stock in the
secondary market.
In addition, the Commission has adopted a number of rules to
regulate "penny stocks", which include Section 3(a)(51-1) and Rules
15g-1, 15g-2, 15g-3, 15g-4, 15g-5, 15g-6, and 15g-9 under the
Securities Exchange Act. Because the securities of Nortia Nevada may
constitute "penny stocks" within the meaning of the rules, the rules
would apply to Nortia Nevada and to its securities. The rules may
further affect the ability of Nortia Nevada's stockholders to sell
their shares in any public market that might develop.
Stockholders should be aware that, according to Commission
Release No. 34-29093, the market for penny stocks has suffered in
recent years from patterns of fraud and abuse. Such patterns include
(i) control of the market for the security by one or a few broker-
dealers that are often related to the promoter or issuer; (ii)
manipulation of prices through prearranged matching of purchases and
sales and false and misleading press releases; (iii) "boiler room"
practices involving high-pressure sales tactics and unrealistic price
projections by inexperienced sales persons; (iv) excessive and
undisclosed bid-ask differentials and markups by selling broker-
dealers; and (v) the wholesale dumping of the same securities by
promoters and broker-dealers after prices have been manipulated to a
desired level, along with the resulting inevitable collapse of those
prices and with consequent investor losses. Nortia Nevada is aware of
the abuses that have occurred historically in the penny stock market;
and, although Nortia Nevada management does not expect to be in a
position to dictate the behavior of the market or of broker-dealers
who participate in the market, Nortia Nevada management will strive
within the confines of practical limitations to prevent the described
patterns from being established with respect to Nortia Nevada's
securities.
Indemnification of Directors and Officers
Article Seventh of Nortia Nevada's Amended and Restated
Articles of Incorporation provides, among other things, that Nortia
Nevada's directors and officers shall not be personally liable to
Nortia Nevada or Nortia Nevada stockholders for damages for breach of
fiduciary duty as director's or officer's, except for: (i) acts or
omissions which involve intentional misconduct, fraud or a knowing
violation of law, or (ii) the payment of dividends in violation of the
Nevada General Corporation Law, (iii) willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the
conduct of his office.
Section 78.7502 of the Nevada Revised Statutes provides that a
corporation shall have the power to indemnify any person who was or is
a party or is threatened to be made a party to or is involved in any
pending, threatened, or completed civil, criminal, administrative, or
arbitration action, suit, or proceeding, or any appeal therein or any
inquiry or investigation which could result in such action, suit, or
proceeding, because of his or her being or having been a Nortia Nevada
director, officer, employee, or agent or of any constituent
corporation absorbed by Nortia Nevada in a consolidation or merger or
by reason of his or her being or having been a director, officer,
trustee, employee, or agent of any other corporation or of any
partnership, joint venture, sole proprietorship, trust, employee
benefit plan, or such enterprise, serving as such at Nortia Nevada's
request or of any such constituent corporation, or the legal
representative of any such director, officer, trustee, employee, or
agent, from and against any and all reasonable costs, disbursements,
and attorney's fees, and any and all amounts paid or incurred in
satisfaction of settlements, judgments, fines, and penalties, incurred
or suffered in connection with any such proceeding.
Section 10 of Nortia Nevada's Bylaws also provides that Nortia
Nevada's officers and directors shall be indemnified and held harmless
by Nortia Nevada to the fullest extent permitted by the provisions of
Section 78.7502 of the Nevada Revised Statutes.
Nortia Nevada's principal offices will be located at 400 Hampton
View Court, Alpharetta, Georgia 30004, which is Nortia Florida's
former office address.
Item 9.01. Financial Statements and Exhibits.
(a) Financial statements of businesses acquired.
Not applicable
(b) Pro forma financial information.
Not Applicable
(c) Exhibits.
2.1 Share Exchange Agreement (Incorporated by reference to Exhibit
2.1 of Nortia Florida's Current Report on Form 8-K filed with the
Commission on October 21, 2004).
2.2 Merger Agreement dated December 3, 2004.
3.1 Nortia Nevada's Amended and Restated Articles of Incorporation
filed with the Nevada Secretary of State's office on November 29, 2004.
3.2 Nortia Nevada's Certificate of Designations of Preferred Stock
filed with the Nevada Secretary of State's office on October 21, 2004.
3.3 Nortia Nevada's Bylaws.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
Nortia Capital Partners, Inc.
By:/s/ William Bosso
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William Bosso, President
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Dated December 8, 2004
Agreement and Plan of Merger
of
Nortia Capital Partners, Inc., a Florida Corporation
into
Nortia Capital Partners, Inc., a Nevada Corporation
THIS AGREEMENT AND PLAN OF MERGER, dated December 3, 2004 made by
and among Nortia Capital Partners, Inc., a Nevada corporation
("Parent"), whose address is 400 Hampton View Court Alpharetta,
Georgia 30004; and Nortia Capital Partners, Inc., a Florida
corporation ("Subsidiary"), whose address is 400 Hampton View Court
Alpharetta, Georgia 30004; (collectively the Parent and Subsidiary are
the "Constituent Corporations").
WITNESSETH:
WHEREAS, Subsidiary desires to merge with and into Parent, with
Parent being the surviving corporation (the "Merger"), on the terms,
and subject to the conditions, set forth in this Plan of Merger (the
"Plan"); and
WHEREAS, Parent owns 100% of Subsidiary's outstanding common
stock; and
WHEREAS, the Board of Directors of Parent has determined that it
is advisable that Subsidiary be merged into Parent, on the terms and
conditions set forth, in accordance with Section 607.1104 of the Florida
Business Corporation Act (the "Florida Act") and Section 92A.180 of the
Nevada Revised Statutes (the "Nevada Act").
NOW, THEREFORE, in consideration of the promises and of the
mutual agreements, covenants, and provisions contained herein, the
parties agree as follows:
ARTICLE I
THE MERGER
1. The term "Effective Date" shall mean the date on which the
Articles of Merger are filed with the Department of State of the
State of Nevada and the Secretary of State of the State of Florida.
2. At the Effective Date, Subsidiary shall be merged with and into
Parent. The separate existence of Subsidiary shall cease at the
Effective Date and the existence of Parent shall continue
unaffected and unimpaired by the Merger with all the rights,
privileges, immunities, and franchises, of a public as well as of
a private nature, and subject to all the duties and liabilities
of corporations organized under the laws of the state of Nevada.
The Certificate of Incorporation of the Parent at the Effective
Date shall be the Certificate of Incorporation of said Parent and
said Certificate of Incorporation shall continue in full force
and effect until amended and changed in the manner prescribed by
the provisions of the Nevada Revised Statutes. The Bylaws of the
Parent at the Effective Date shall be the Bylaws of said Parent
and said Bylaws shall continue in full force and effect until
changed, altered, or amended as therein provided and in the
manner prescribed by the provisions of the Nevada Revised
Statutes.
3. The Plan of Merger has been adopted and approved by resolution of
the Board of Directors of Parent on December 1, 2004 in
accordance with Section 92A.180 of the Nevada Act. The Plan of Merger
has been adopted and approved by resolution of the Board of
Directors of Subsidiary on December 1, 2004 in accordance with
Section 607.1104 of the Florida Act.
4. The directors and officers in office of the Parent at the
Effective Date shall continue to hold their directorships and
offices until the election and qualification of their respective
successors or until their tenure is otherwise terminated in
accordance with the Bylaws of the Parent.
5. The board of directors and the proper officers of the Subsidiary
and the Parent, respectively, are hereby authorized, empowered,
and directed to do any and all acts and things, and to make,
execute, deliver, file, and/or record any and all instruments,
papers, and documents which shall be or become necessary, proper,
or convenient to carry out or put into effect any of the
provisions of this Agreement and Plan Merger or of the Merger
herein provided for.
ARTICLE II
EFFECTS OF THE MERGER
At the Effective Date, Parent shall possess all the rights,
privileges, immunities, and franchises, of both a public and private
nature, of Subsidiary, and shall be responsible and liable for all
liabilities and obligations of Subsidiary, all as more fully provided
for in the Nevada Act and the Florida Act.
ARTICLE III
CANCELATION OF SUBSIDIARY'S SHARES
At the Effective Date, each share of Subsidiary common stock held
by Parent shall, by virtue of the Merger and without any action on the
part of Parent, be canceled simultaneously with the effectiveness of
the Merger.
ARTICLE IV
ASSIGNMENT
If at any time Parent shall consider or be advised that any
further assignment or assurances in law are necessary or desirable to
vest, perfect, or confirm or record in Parent the title to any
property or rights of Subsidiary, or to otherwise carry out the
provisions of this Plan, the proper officers and directors of
Subsidiary as of the Effective Date shall execute and deliver any and
all proper deeds, assignments, and assurances in law, and do all
things necessary or proper to vest, perfect, confirm, or record the
title to such property or rights in Parent.
ARTICLE V
EXPENSES
Subsidiary shall pay all expenses of accomplishing the Merger.
ARTICLE VI
AMENDMENT
At any time before the filing with the Florida Secretary of State
and the Nevada Secretary of State of the Articles of Merger to be
filed in connection with this Plan, the Directors of Parent may amend
this Plan. If the Articles of Merger already have been filed with the
Secretaries of State, amended Articles of Merger shall be filed with
the Secretaries of State, but only if such amended Articles of Merger
can be filed before the Effective Date.
ARTICLE VII
TERMINATION
If for any reason consummation of the Merger is inadvisable in
the opinion of the Board of Directors of Parent, this Plan may be
terminated at any time before the Effective Date by resolution of the
Board of Directors of Parent. On termination as provided in this Plan,
this Plan shall be void and of no further effect, and there shall be
no liability by reason of this Plan or the termination of this Plan on
the part of Parent or Subsidiary, or their directors, officers,
employees, agents, or shareholders.
IN WITNESS WHEREOF, this Agreement and Plan of Merger is hereby
executed upon behalf of the Parent and Subsidiary on the date first
written above.
PARENT:
Nortia Capital Partners, Inc.,
a Nevada Corporation
By: /s/William Bosso
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William Bosso, CEO
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SUBSIDIARY:
Nortia Capital Partners, Inc.,
a Florida corporation
By:/s/William Bosso
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William Bosso, CEO
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FIRST. The name of this corporation is Nortia Capital
Partners, Inc.
SECOND. The address of this corporation's registered office in
the State of Nevada is 502 East John Street, Carson City, Nevada
89706. The name of its resident agent at such address is CSC
Services of Nevada, Inc.
THIRD. The purpose of this corporation is to engage in any
lawful act or activity for which corporations may be organized
pursuant to the General Corporation Law of the State of Nevada.
FOURTH. The total number of shares of capital stock which this
corporation shall have authority to issue is fifty-five million
(55,000,000) with a par value of $.001 per share amounting to
$55,000.00. Fifty million (50,000,000) of those shares are Common
Stock and five million (5,000,000) of those shares are Preferred
Stock. Each share of Common Stock shall entitle the holder thereof
to one vote, in person or by proxy, on any matter on which action of
the stockholders of this corporation is sought. The holders of
shares of Preferred Stock shall have no right to vote such shares,
except (i) determined by the Board of Directors of this corporation
in accordance with the provisions of Section (3) of ARTICLE FIFTH of
these Articles of Incorporation, or (ii) as otherwise provided by
the Nevada General Corporation Law, as amended from time to time.
FIFTH. The Board of Directors of this corporation shall be,
and hereby is, authorized and empowered, subject to limitations
prescribed by law and the provisions of the Article FOURTH of these
Articles of Incorporation, to provide for the issuance of the shares
of Preferred Stock in series, and by filing a certificate pursuant
to the applicable law of the State of Nevada, to establish from time
to time the number of shares to be included in each such series, and
to fix the designations, powers, preferences and rights of the
shares of each such series and the qualifications, limitations or
restrictions of each such series. The authority of the Board of
Directors with respect to each series shall include, but not be
limited to, determination of the following:
(1) The number of shares constituting such series and
the distinctive designation of such series;
(2) The dividend rate on the shares of such series,
whether dividends shall be cumulative, and, if so, from which date
or dates, and the relative rights of priority, if any, of payment of
dividends on shares of such series;
(3) Whether such series shall have voting rights, in
addition to the voting rights provided by law, and, if so, the terms
of such voting rights;
(4) Whether such series shall have conversion
privileges, and, if so, the terms and conditions of such conversion
privileges, including provision for adjustment of the conversion
rate, in such events as the Board of Directors shall determine;
(5) Whether or not the shares of such series shall be
redeemable, and, if so, the terms and conditions of such redemption,
including the date or date upon or after which those shares shall be
redeemable, and the amount per share payable in the event of
redemption, which amount may vary in different circumstances and at
different redemption dates;
(6) Whether that series shall have a sinking fund for
the redemption or purchase of shares of such series, and, if so, the
terms and amount of such sinking fund;
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(7) The rights of the shares of such series in the event
of voluntary or involuntary liquidation, dissolution or winding up
of this corporation, and the relative rights of priority, if any, of
payment of shares of such series; and
(8) Any other relative rights, preferences and
limitations of such series.
Dividends on issued and outstanding shares of Preferred Stock
shall be paid or declared and set apart for payment prior to any
dividends shall be paid or declared and set apart for payment on the
shares of Common Stock with respect to the same dividend period.
If, upon any voluntary or involuntary liquidation, dissolution
or winding up of this corporation, the assets of this corporation
available for distribution to holders of shares of Preferred Stock
of all series shall be insufficient to pay such holders the full and
complete preferential amount to which such holders are entitled,
then such assets shall be distributed ratably among the shares of
all series of Preferred Stock in accordance with the respective
preferential amounts, including unpaid cumulative dividends, if any,
payable with respect thereto.
SIXTH. The incorporator of this corporation is Michael J.
Muellerleile, whose mailing address is 1301 Dove Street, Suite 460,
Newport Beach, California 92660. The powers of the incorporator are
to terminate upon the filing of these Articles of Incorporation.
SEVENTH. No director or officer of this corporation shall have
any personal liability to this corporation or its stockholders for
damages for breach of fiduciary duty as a director or officer,
except that this Article Seventh shall not eliminate or limit the
liability of a director or officer for (i) acts or omissions which
involve intentional misconduct, fraud or a knowing violation of law,
(ii) the payment of dividends in violation of the Nevada General
Corporation Law, or (iii) willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties involved in the
conduct of such director's or officer's office. Any repeal or
modification of this article by the stockholders of this corporation
shall not adversely affect any right or protection of any director
of this corporation existing at the time of such repeal or
modification.
EIGHTH. This corporation reserves the right at any time, and
from time to time, to amend, alter, change or repeal any provision
specified in these Articles of Incorporation, and other provisions
authorized by the laws of the State of Nevada at any such time then
in force may be added or inserted, in the manner now or hereafter
prescribed by law; and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any
other persons whomsoever by and pursuant to these Articles of
Incorporation in their present form or as hereafter amended are
granted subject to the rights reserved in this article.
NINTH. Capital stock issued by this corporation after the
amount of the subscription price or par value therefor has been paid
in full shall not be subject to pay debts of this corporation, and
no capital stock issued by this corporation and for which payment
has been made shall ever be assessable or assessed.
TENTH. (a) The affairs of this corporation shall be governed
by a Board of Directors of not more than fifteen (15) persons nor
less than one (1) person, as determined from time to time by vote of
a majority of the Board of Directors of this corporation; provided,
however, that the number of directors shall not be reduced so as to
reduce the term of any director at the time in office.
-2-
The name and address of the initial member of the Board of
Directors, which shall initially consist of one director, are:
Cynthia Bergendahl
1301 Dove Street, Suite 460
Newport Beach, California 92660
The name and address of each of the members of the Board of
Directors as of the date of filing of these Restated Articles of
Incorporation are:
Matthew Henninger
555 W. 5th Street
Los Angeles, California 90013
William Bosso
400 Hampton View Court
Alpharetta, Georgia 30003
Michael Marshall
6524 Elizan Drive NW
Olympia, Washington 98502
Harrysen Mittler
2400 Dundas Street West, #139
Mississauga, Canada L5K 2R8
J. P. Baron
RR#2, Box 2158
York Street
Collingwood, Canada L9Y 3Z1
John Benton
3312 Piedmont Road, Suite 400
Atlanta, Georgia 30305-1713
(b) The Board of Directors of this corporation shall be
divided into three (3) classes, as nearly equal in numbers as the
then total number of directors constituting the entire Board of
Directors permits, with the term of office of one class expiring
each year. At the first annual meeting of stockholders of this
corporation directors of the first class shall be elected to hold
office for a term expiring at the next succeeding annual meeting of
those stockholders, directors of the second class shall be elected
to hold office for a term expiring at the second succeeding annual
meeting, and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual meeting of
those stockholders. Any vacancies in the Board of Directors for any
reason, and any directorships resulting from any increase in the
number of directors, may be filled by the Board of Directors, acting
by a majority of the directors then in office, although less than a
quorum, and any directors so chosen shall hold office until the next
election of the class for which such directors shall have been
chosen and until their successors shall be elected and qualified.
Notwithstanding the foregoing, and except as otherwise required by
law, whenever the holders of any one or more series of Preferred
Stock shall have the right, voting separately as a class, to elect
one or more directors of this corporation, the terms of the director
or directors elected by such holders shall expire at the next
-3-
succeeding annual meeting of stockholders. Subject to the
foregoing, at each annual meeting of stockholders the successors to
the class of directors whose terms shall then expire shall be
elected to hold office for a term expiring at the third succeeding
annual meeting of stockholders.
(c) Notwithstanding any other provisions of these Articles of
Incorporation or the bylaws of this corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, these
Articles of Incorporation or the bylaws of this corporation), any
director or the entire Board of Directors of this corporation may be
removed at any time, but only for cause and only by the affirmative
vote of the holders of seventy-five percent (75%) or more of the
outstanding shares of capital stock of this corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class) cast at a meeting of the stockholders of this
corporation called for that purpose. Notwithstanding the foregoing,
and except as otherwise required by law, whenever the holders of any
one or more series of Preferred Stock shall have the right, voting
separately as a class, to elect one or more directors of this
corporation, the provisions of section (c) of this article shall not
apply with respect to the director or directors elected by such
holders of Preferred Stock.
ELEVENTH. The period of existence of this corporation shall be
perpetual.
TWELFTH. No contract or other transaction between this
corporation and any other corporation, whether or not a majority of
the shares of the capital stock of such other corporation is owned
by this corporation, and no act of this corporation shall in any way
be affected or invalidated by the fact that any of the directors of
this corporation are pecuniarily or otherwise interested in, or are
directors or officers of such other corporation. Any director of
this corporation, individually, or any firm of which such director
may be a member, may be a party to, or may be pecuniarily or
otherwise interested in any contract or transaction of this
corporation; provided, however, that the fact that he or such firm
is so interested shall be disclosed or shall have been known to the
Board of Directors of this corporation, or a majority thereof; and
any director of this corporation who is also a director or officer
of such other corporation, or who is so interested, may be counted
in determining the existence of a quorum at any meeting of the Board
of Directors of this corporation that shall authorize such contract
or transaction, and may vote thereat to authorize such contract or
transaction, with the same force and effect as if he or she were not
such director or officer of such other corporation or not so
interested.
THIRTEENTH. Reserved.
FOURTEENTH. Reserved.
FIFTEENTH. All of the powers of this corporation, insofar as
the same may be lawfully vested by these Articles of Incorporation
in the Board of Directors, are hereby conferred upon the Board of
Directors of this corporation. In furtherance and not in limitation
of that power, the Board of Directors shall have the power to make,
adopt, alter, amend and repeal from time to time bylaws of this
corporation, subject to the right of the shareholders entitled to
vote with respect thereto to adopt, alter, amend and repeal bylaws
made by the Board of Directors; provided, however, that bylaws shall
not be adopted, altered, amended or repealed by the stockholders of
this corporation, except by the vote of the holders of not less than
two thirds (2/3) of the outstanding shares of stock entitled to vote
upon the election of directors.
-4-
IN WITNESS WHEREOF, the undersigned incorporator has hereunto
affixed his signature at Olympia, Washington, this ___ day of
November, 2004.
President and Chief Executive Officer:
/s/ Michael Marshall
----------------------
MICHAEL MARSHALL
|
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CERTIFICATE OF DESIGNATIONS, PREFERENCES, AND
RIGHTS OF SERIES A CONVERTIBLE PREFERRED STOCK
OF
GLOBAL LIFE SCIENCES, INC.
Global Life Sciences, Inc. (the "Company"), a corporation
organized and existing under the General Corporation Law of the State
of Nevada, does hereby certify that, pursuant to authority conferred
upon the Board of Directors of the Company by the Articles of
Incorporation of the Company, and pursuant to the General Corporation
Law of the State of Nevada, pursuant to the unanimous written consent
of the Board of Directors of the Company, adopted resolutions (i)
authorizing a series of the Company's previously authorized preferred
stock, $.001 par value per share, and (ii) providing for the
designations, preferences and relative, participating, optional or
other rights, and the qualifications, limitations or restrictions
thereof of three hundred thousand (300,000) shares of Series A
Preferred Stock of the Company, as follows:
WHEREAS, the Articles of Incorporation of the Company authorizes
a class of Preferred Stock comprising 5,000,000 shares issuable from
time to time in one or more series; and
WHEREAS, the Board of Directors of the Company is authorized to
fix or alter the rights, preferences, privileges, and restrictions
granted to or imposed upon any wholly unissued series of Preferred
Stock including, but not limited to, the dividend rights, dividend
rates, conversion rights, voting rights, and the liquidation
preferences, and the number of shares constituting any such series and
the designation thereof, or any of them; and
WHEREAS, the Company heretofore has not issued or designated any
series of Preferred Stock, and it is the desire of the Board of
Directors of the Company, pursuant to its authority as aforesaid, to
fix the rights, privileges, preferences, restrictions and other
matters relating to Series A Convertible Preferred Stock and the
number of shares constituting such series;
NOW, THEREFORE, be it resolved, the Board of Directors hereby
does provide for the issues of a series of Preferred Stock consisting
of 300,000 shares designated as "Series A Convertible Preferred
Stock," and does hereby fix the rights, privileges, preferences and
restrictions and other matters relating to the Series A Convertible
Preferred Stock (the "Preferred A Shares") as follows:
(1) Dividends.
(a) Dividends. Subject to a declaration thereof by
the Company's Board of Directors, each holder (a "Holder" and,
collectively, the "Holders") of the Preferred A Shares shall be
entitled to a dividend (individually, a "Dividend"; collectively,
-1-
the "Dividends") at a rate determined by the Company's Board of
Directors on a pari passu basis with the holders of Common Shares
and other classes of preferred shares of the Company, except for
those holders of any class of preferred shares which have a
preference with respect to the right to receive dividends.
(b) General Payment Provisions. All Dividends, if,
when, and as declared, by the Company with respect to any
Preferred A Share shall be made in lawful money of the United
States of America by depositing with the United States Postal
Service, within 15 days of the date of declaration by the
Company's Board of directors of such Dividend a company check,
made payable to the Holder, to such address as such Holder may
from time to time designated by written notice to the Company in
accordance with the provisions of this Certificate of
Designations of Rights, Privileges, Preferences and Restrictions
(the "Certificate of Designations").
(2) Conversion of Preferred A Shares. Preferred A Shares
shall be convertible into shares of the Company's common stock,
no par value per share (the "Common Stock"), on the terms and
conditions set forth in this Section 2.
(a) Certain Defined Terms. For purposes of this
Certificate of Designations, the following terms shall have the
following meanings:
(i) "Business Day" means any day in which the
stock markets of the United States are open for business.
(ii) "Issuance Date" means the date the first of
the Preferred A Shares has been issued or sold.
(iii) "Mandatory Conversion Date" means, with
respect to any Preferred A Share, the date which is two (2) years
after the Issuance Date.
(iv) "Person" means an individual, a limited
liability company, a partnership, a joint venture, a corporation,
a trust, an unincorporated organization, and a government or any
department or agency thereof.
(b) Holder's Conversion Right; Mandatory Conversion.
Subject to the provisions of Section 2(d), below, at any time or
times on or after the Issuance Date, any Holder of Preferred A
Shares shall be entitled to convert any whole number of Preferred
A Shares into fully paid and nonassessable shares of Common Stock
in accordance with Section 2(d), at the Conversion Ratio (as
defined below). If any Preferred A Shares remain outstanding on
the Mandatory Conversion Date, then, subject to Section 2(d),
below, such Preferred A Shares shall be converted at the
Conversion Ratio as of such date in accordance with Section 2(c),
below. The Company shall not issue any fraction of a share of
Common Stock upon any conversion. All shares of Common Stock
(including fractions thereof) issuable upon conversion of more
than one Preferred A Share by a Holder thereof shall be
aggregated for purposes of determining whether the conversion
would result in the issuance of a fraction of a share of Common
Stock. If, after the aforementioned aggregation, the issuance
would result in the issuance of a fraction of a share of Common
Stock, the Company shall round such fraction of a share of Common
Stock up to the nearest whole share.
-2-
(c) Conversion Ratio. The number of shares of Common
Stock issuable upon conversion of each Preferred A Share pursuant
to Section 2(b) shall be one (1), subject to subject to
adjustment from time to time as provided in Section 2(f), below.
(d) Mechanics of Conversion. The conversion of
Preferred A Shares shall be conducted in the following manner:
(i) Holder's Delivery Requirements. To convert
Preferred A Shares into shares of Common Stock on any date (the
"Conversion Date"), the Holder shall (A) transmit by facsimile
(or otherwise deliver), for receipt on or prior to 11:59 p.m.,
Pacific Time, on such date, a copy of a fully executed notice of
conversion in the form attached hereto as Exhibit I (the
"Conversion Notice") to the Company and (B) surrender to a
nationally recognized overnight delivery service carrier for
delivery to the Company as soon as practicable following such
date the original certificates representing the Preferred A
Shares being converted or an indemnification undertaking, with
respect to such shares, in the case of their loss, theft, or
destruction (in either case, hereinafter the "Preferred Stock
Certificates").
(ii) Company's Response. Upon receipt by the
Company of a copy of a Conversion Notice, the Company shall
immediately send, via facsimile, a confirmation of receipt of
such Conversion Notice to such Holder. Upon receipt by the
Company of the Preferred Stock Certificates to be converted
pursuant to a Conversion Notice, the Company shall, on the next
Business Day following the date of receipt (or the second
Business Day following the date of receipt if received after
11:00 a.m. Pacific Time), issue and surrender to a nationally
recognized overnight delivery service for overnight delivery to
the address as specified in the Conversion Notice, a certificate,
registered in the name of the Holder or its designee, for the
number of shares of Common Stock to which the Holder shall be
entitled. If the number of Preferred A Shares represented by the
Preferred Stock Certificate(s) submitted for conversion is
greater than the number of Preferred A Shares being converted,
then the Company shall, as soon as practicable and in no event
later than three (3) Business Days after receipt of the Preferred
Stock Certificate(s) and at the Company's expense, issue and
deliver to the Holder a new Preferred Stock Certificate
representing the number of Preferred A Shares not converted.
(iii) Dispute Resolution. In the case of a
dispute as to the determination of the arithmetic calculation of
the Conversion Ratio, the Company shall issue to the Holder the
number of shares of Common Stock that is not disputed and shall
submit the disputed determinations or arithmetic calculations to
the Holder via facsimile within one (1) Business Day of receipt
of such Holder's Conversion Notice. If such Holder and the
Company are unable to agree upon the determination of the
arithmetic calculation of the Conversion Ratio within one (1)
Business Day of such disputed determination or arithmetic
calculation being submitted to the Holder, then the Company shall
within one (1) Business Day submit via facsimile the disputed
arithmetic calculation of the Conversion Ratio to an independent,
reputable investment bank or accountant selected by the affected
Holders and approved by the Company. The Company shall cause the
investment bank or the accountant, as the case may be, to perform
the determinations or calculations and notify the Company and the
Holder of the results no later than forty-eight (48) hours from
the time it receives the disputed determinations or calculations.
Such investment bank's or accountant's determination or
calculation, as the case may be, shall be binding upon all
parties absent manifest error and the Company shall be liable and
responsible for paying such investment bank or accountant fees
and expenses.
-3-
(iv) Record Holder. The person or persons
entitled to receive the shares of Common Stock issuable upon a
conversion of Preferred A Shares shall be treated for all
purposes as the record holder or holders of such shares of Common
Stock as of the Conversion Date.
(v) Pro Rata Conversion. Subject to the
relevant provisions, if any, of the General Corporation Law of
the State of Nevada in the event the Company receives a
Conversion Notice from more than one Holder of Preferred A Shares
for the same Conversion Date and the Company can convert some,
but not all, of such Preferred A Shares, the Company shall
convert from each Holder of Preferred A Shares electing to have
Preferred A Shares converted at such time a pro rata amount of
such Holder's Preferred A Shares submitted for conversion based
on the number of Preferred A Shares submitted for conversion on
such date by such Holder relative to the number of Preferred A
Shares submitted for conversion on such date.
(vi) Mechanics of Mandatory Conversion. Subject
to Section 2(b), above, on the Mandatory Conversion Date, all
Holders of Preferred A Shares shall surrender all Preferred A
Shares to the Company and all Preferred A Shares shall be
converted as of such date as if the Holders of such Preferred A
Shares had given the Conversion Notice for all such Preferred A
Shares on the Mandatory Conversion Date.
(e) Taxes. The Company shall pay any and all taxes
that may be payable with respect to the issuance and delivery of
Common Stock upon the conversion of Preferred A Shares.
(f) Adjustments to Conversion Ratio. The Conversion
Ratio will be subject to adjustment from time to time as provided
in this Section 2(f).
(i) Adjustment of Conversion Ratio upon
Subdivision or Combination of Common Stock. If the Company at
any time subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its
outstanding shares of Common Stock into a greater number of
shares, the Conversion Ratio in effect immediately prior to such
subdivision will be proportionately adjusted. If the Company at
any time combines (by combination, reverse stock split, or
otherwise) one or more classes of its outstanding shares of
Common Stock into a smaller number of shares, the Conversion
Ratio in effect immediately prior to such combination will be
proportionately adjusted.
(ii) Notice. Immediately upon any adjustment of
the Conversion Ratio, the Company will give written notice
thereof to each Holder of Preferred A Shares, setting forth in
reasonable detail, and certifying, the calculation of such
adjustment.
(3) Reservation of Shares. The Company shall, at all
times so long as any of the Preferred A Shares are outstanding,
reserve and keep available out of its authorized and unissued
Common Stock, solely for the purpose of effecting the conversion
-4-
of the Preferred A Shares, such number of shares (the "Reserved
Amount") of Common Stock as shall from time to time be sufficient
to effect the conversion of all of the Preferred A Shares then
outstanding. The initial number of shares of Common Stock
reserved for conversions of the Preferred A Shares and each
increase in the number of shares so reserved shall be allocated
pro rata among the Holders of the Preferred A Shares based on the
number of Preferred A Shares held by each Holder at the time of
issuance of the Preferred A Shares or increase in the number of
reserved shares, as the case may be. In the event a Holder shall
sell or otherwise transfer any of such Holder's Preferred A
Shares, each transferee shall be allocated a pro rata portion of
the number of reserved shares of Common Stock reserved for such
transferor. Any shares of Common Stock reserved and allocated to
any Person who ceases to hold any Preferred A Shares shall be
allocated to the remaining Holders of Preferred A Shares, pro
rata based on the number of Preferred A Shares then held by such
Holders.
(4) Voting Rights. Each Preferred A Share shall have
voting rights equivalent to ten (10) times the number of shares
of Common Stock into which each such Preferred A Share shall
convert as of the record date of any such vote in respect of any
matter on which the shares of Common Stock are then eligible or
entitled to vote, whether voting as a separate class or voting in
conjunction with any other class of securities of the Company,
unless otherwise expressly required by law or provided in this
Certificate of Designations. All Preferred A Shares shall also
vote as a class as required by law and as expressly provided in
this Certificate of Designations. If no record date shall have
been declared, then the date on which the Preferred A Shares
shall be deemed eligible or entitled to vote shall be a date
relevant to the date utilized by the Company in respect of any
such vote or consent by the Common Stock, determined in a manner
equitable to the holders of the Preferred A Shares such that the
voting rights provided herein shall not be diminished.
(5) Liquidation, Dissolution, Winding-Up. In the event of
any voluntary or involuntary liquidation, dissolution or winding
up of the Company, the Holders of the Preferred A Shares shall be
entitled to receive in cash out of the assets of the Company,
whether from capital or from earnings available for distribution
to its stockholders (the "Liquidation Funds"), before any amount
shall be paid to the holders of any of the capital stock of the
Company of any class junior in rank to the Preferred A Shares in
respect of the preferences as to the distributions and payments
on the liquidation, dissolution and winding up of the Company, an
amount per Preferred A Share equal to $.10 and any accrued but
unpaid Dividends (such sum being referred to as the "Liquidation
Preference"); provided that, if the Liquidation Funds are
insufficient to pay the full amount due to the Holders of
Preferred A Shares, then each Holder of Preferred A Shares shall
receive a percentage of the Liquidation Funds equal to the full
amount of Liquidation Funds payable to such Holder as a
liquidation preference. The purchase or redemption by the
Company of stock of any class, in any manner permitted by law,
shall not, for the purposes hereof, be regarded as a liquidation,
dissolution, or winding up of the Company. Neither the
consolidation or merger of the Company with or into any other
Person, nor the sale or transfer by the Company of less than
substantially all of its assets, shall, for the purposes hereof,
be deemed to be a liquidation, dissolution, or winding up of the
Company. No Holder of Preferred A Shares shall be entitled to
receive any amounts with respect thereto upon any liquidation,
dissolution, or winding up of the Company other than the amounts
provided for herein; provided that a Holder of Preferred A Shares
shall be entitled to all amounts previously accrued with respect
to amounts owed hereunder.
-5-
(6) Preferred Rank. All shares of Common Stock shall be
of junior rank to all Preferred A Shares in respect to the
preferences as to distributions and payments upon the
liquidation, dissolution, and winding up of the Company. The
rights of the shares of Common Stock shall be subject to the
preferences and relative rights of the Preferred A Shares.
Without the prior express written consent of the Holders of not
less than sixty-eight percent (68%) of the then outstanding
Preferred A Shares, the Company shall not hereafter authorize or
issue additional or other capital stock that is of senior or
equal rank to the Preferred A Shares in respect of the
preferences as to distributions and payments upon the
liquidation, dissolution, and winding up of the Company. Without
the prior express written consent of the Holders of not less than
sixty-eight percent (68%) of the then outstanding Preferred A
Shares, the Company shall not hereafter authorize or make any
amendment to the Company's Articles of Incorporation or bylaws or
enter into any agreement containing any provisions that would
adversely affect or otherwise impair the rights or relative
priority of the Holders of the Preferred A Shares relative to the
holders of the Common Stock or the holders of any other class of
capital stock. In the event of the merger or consolidation of
the Company with or into another corporation, the Preferred A
Shares shall maintain their relative powers, Determinations, and
preferences provided for herein and no merger shall result
inconsistent therewith; provided that such proscription may be
waived by the prior express written consent of the Holders of not
less than sixty-eight percent (68%) of the then outstanding
Preferred A Shares.
(7) Restriction on Cash Dividends. Until all of the
Preferred A Shares have been converted as provided herein, the
Company shall not, directly or indirectly, redeem, or declare or
pay any cash dividend or distribution on, its Common Stock
without the prior express written consent of the Holders of not
less than sixty-eight percent (68%) of the then outstanding
Preferred A Shares.
(8) Vote to Change the Terms of Preferred A Shares. The
affirmative vote at a meeting duly called for such purpose or the
written consent without a meeting, of the Holders of not less
than sixty-eight percent (68%) of the then-outstanding Preferred
A Shares, shall be required for any change to this Certificate of
Designations or the Company's Articles of Incorporation that
would amend, alter, change, or repeal any of the powers,
Determinations, preferences, and rights of the Preferred A
Shares.
(9) Lost or Stolen Certificates. Upon receipt by the
Company of evidence reasonably satisfactory to the Company of the
loss, theft, destruction, or mutilation of any Preferred Stock
Certificates representing the Preferred A Shares, and, in the
case of loss, theft or destruction, of any indemnification
undertaking by the Holder to the Company in customary form and,
in the case of mutilation, upon surrender and cancellation of the
Preferred Stock Certificate(s), the Company shall execute and
deliver new preferred stock certificate(s) of like tenor and
date; provided, however, the Company shall not be obligated to
re-issue preferred stock certificates if the Holder
contemporaneously requests the Company to convert such Preferred
A Shares into Common Stock.
(10) Remedies, Characterizations, Other Obligations,
Breaches, and Injunctive Relief. The remedies provided in this
-6-
Certificate of Designations shall be cumulative and in addition
to all other remedies available under this Certificate of
Designations, at law or in equity (including a decree of specific
performance and/or other injunctive relief), no remedy contained
herein shall be deemed a waiver of compliance with the provisions
giving rise to such remedy and nothing herein shall limit a
Holder's right to pursue actual damages for any failure by the
Company to comply with the terms of this Certificate of
Designations. The Company covenants to each Holder of Preferred
A Shares that there shall be no characterization concerning this
instrument other than as expressly provided herein. Amounts set
forth or provided for herein with respect to payments, conversion
and the like (and the computation thereof) shall be the amounts
to be received by the Holder thereof and shall not, except as
expressly provided herein, be subject to any other obligation of
the Company (or the performance thereof).
(11) Specific Shall Not Limit General; Construction. No
specific provision contained in this Certificate of Designations
shall limit or modify any more general provision contained
herein. This Certificate of Designations shall be deemed to be
jointly drafted by the Company and all Holders and shall not be
construed against any person as the drafter hereof.
(12) Failure or Indulgence Not Waiver. No failure or delay
on the part of a Holder of Preferred A Shares in the exercise of
any power, right or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise
thereof or of any other right, power or privilege.
[Signature Page Follows]
-7-
IN WITNESS WHEREOF, the Company has caused this Certificate of
Designations, Preferences and Rights to be signed by Michael E.
Marshall, its President, as of the 15th day of October, 2004.
GLOBAL LIFE SCIENCES, INC.
By: /S/Michael E. Marshall
-------------------------------
Michael E. Marshall, President
|
-8-
EXHIBIT I
CONVERSION NOTICE
Reference is made to the Certificate of Designations, Preferences
and Rights (the "Certificate of Designations") of Global Life
Sciences, Inc. (the "Company"). In accordance with and pursuant to
the Certificate of Designations, the undersigned hereby elects to
convert the number of shares of Series A Convertible Preferred Stock,
$.001 par value per share (the "Preferred A Shares"), of the Company
indicated below into shares of Common Stock, $.001 par value per share
(the "Common Stock"), of the Company, by tendering the certificate(s)
representing the share(s) of Preferred A Shares specified below as of
the date specified below.
Date of Conversion: __________________________________________________
Number of Preferred A Shares to be converted: ________________________
Stock certificate no(s). of Preferred A Shares to be converted: ______
Please confirm the following information:
Conversion Ratio: _____________________________________________________
Number of shares of Common Stock to be issued:
Please issue the Common Stock into which the Preferred A Shares
are being converted and, if applicable, any check drawn on an account
of the Company in the following name and to the following address:
Issue to: _____________________________________________________________
Facsimile Number: _____________________________________________________
Authorization: ________________________________________________________
By: __________________________________________________
Title: _______________________________________________
Dated: ______________________
Account Number:
(if electronic book entry transfer): __________________________________
Transaction Code Number:
(if electronic book entry transfer): __________________________________
-9-
SECTION 1. OFFICES
The principal office of Too Gourmet, Inc., a Nevada
corporation ("Corporation") shall be located at the principal place of
business or such other place as the Board of Directors ("Board") may
designate. The Corporation may have such other offices, either within or
without the State of Nevada, as the Board may designate or as the business
of the Corporation may require from time to time.
SECTION 2. SHAREHOLDERS
2.1 Annual Meeting
The annual meeting of the shareholders shall be held the
first Friday of March in each year, or on such other day as shall be
fixed by resolution of the Board, at the principal office of the Corporation,
or such other place as fixed by the Board, for the purpose of electing
directors and transacting such other business as may properly come before
that meeting. If the day fixed for the annual meeting is a legal holiday at
the place of that meeting, that meeting shall be held on the next succeeding
business day.
2.2 Special Meetings
The Board, the President, or the Chairperson of the Board,
may call special meetings of the shareholders for any purpose. The holders of
not less than ten percent (10%) of all the outstanding shares of the
Corporation entitled to vote for or against any issue proposed to be
considered at the proposed special meeting, if they date, sign and deliver
to the Corporation's Secretary a written demand for a special meeting
specifying the purpose or purposes for which it is to be held, may call a
special meeting of the shareholders for such specified purpose.
2.3 Place of Meeting
All meetings shall be held at the principal office of the
Corporation, or at such other place as designated by the Board, by any
persons entitled to call a meeting pursuant to the bylaws, or in a waiver
of notice signed by all of the shareholders entitled to vote at that meeting.
2.4 Notice of Meeting
(a) The Corporation shall cause to be delivered to each
shareholder entitled to notice of, or to vote at, an annual or special
meeting of shareholders, either personally or by mail, not less than
ten (10) days nor more than sixty (60) days before that meeting, written
notice stating the date, time and place of that meeting and, in the case of a
special meeting, the purpose or purposes for which that meeting is called.
(b) Notice to a shareholder of an annual or special shareholders
meeting shall be in writing. Such notice, if in comprehensible form, is
effective (a) when mailed, if it is mailed postpaid and is correctly addressed
to that shareholder's address specified in the Corporation's then current
record of shareholders, or (b) when received by that shareholder, if it is
delivered by telegraph, facsimile transmission or private courier.
(c) If an annual or special shareholders meeting is adjourned to a
different date, time, or place, notice of the new date, time, or place shall
not be required if the new date, time, or place is announced at that meeting
before adjournment, unless a new record date for the adjourned meeting is,
or must be, fixed pursuant to (i) Section 2.6(a) of these bylaws or (ii) the
Nevada General Corporation Law.
2.5 Waiver of Notice
(a) Whenever any notice is required to be given to any
shareholder pursuant to the provisions of these bylaws, the Articles of
Incorporation or the Nevada General Corporation Law, a waiver thereof in
writing, signed by the person or persons entitled to such notice, whether
before or after the time specified in such notice, and delivered to the
Corporation for inclusion in the minutes for filing with the corporate
records, shall be deemed equivalent to the giving of such notice.
(b) The attendance of a shareholder at a meeting shall be a
waiver of each objection to lack of, or defect in, notice of such meeting
or of consideration of a particular matter at that meeting, unless that
shareholder, at the beginning of that meeting or prior to consideration of
such matter, objects to holding that meeting, transacting business at that
meeting, or considering the matter when presented at that meeting.
2.6 Fixing of Record Date for Determining Shareholders
(a) For the purpose of determining shareholders entitled to
notice of, or to vote at, any meeting of shareholders, or any adjournment
thereof, or shareholders entitled to receive payment of any dividend, or to
make a determination of shareholders for any other purpose, the Board may
fix in advance a date as the record date for any such determination. Such
record date shall be not more than seventy (70) days, and in case of a meeting
of shareholders, not less than ten (10) days, prior to the date on which the
particular action requiring such determination is to be taken. If no
record date is fixed for the determination of shareholders entitled to notice
of, or to vote at, a meeting, or to receive payment of a dividend, the date
on which the notice of meeting is mailed or on which the resolution of the
Board declaring such dividend is adopted, as the case may be, shall be the
record date for such determination. Such determination shall apply to any
adjournment of that meeting; provided, however, such adjournment is not set
for a date more than one hundred twenty (120) days after the date fixed for
the original meeting.
(b) The record date for the determination of shareholders entitled to
demand a special shareholders meeting shall be the date the first shareholder
signs the demand.
2.7 Shareholders' List
(a) Beginning two (2) business days after notice of a meeting of
shareholders is given, a complete alphabetical list of the shareholders
entitled to notice of that meeting shall be made, arranged by voting group,
and within each voting group by class or series, with the address of and
number of shares held by each shareholder. Such record shall be kept on file
at the Corporation's principal office or at a place identified in that meeting
notice in the city where the meeting will be held. On written demand, such
record shall be subject to inspection by any shareholder at any time during
normal business hours. Such record shall also be kept open at that meeting
for inspection by any shareholder.
(b) A shareholder may, on written demand, copy the shareholders'
list at such shareholder's expense during regular business hours;
provided, however, that:
(i) Such shareholder's demand is made in good faith
and for another purpose;
(ii) Such shareholder has described with reasonable
particularity such shareholder's purpose specified
in the written demand; and
(iii) The shareholders' list is directly related to such
shareholder's purpose.
2.8 Quorum
A majority of the votes entitled to be cast on a matter at a meeting
by a voting group, represented in person or by proxy, shall constitute a
quorum of that voting group for action on that matter at a meeting of the
shareholders. If a quorum is not present for a matter to be acted upon, a
majority of the shares represented at that meeting may adjourn that meeting
from time to time without additional notice. If the necessary quorum is
present or represented at a reconvened meeting following such an adjournment,
any business may be transacted that might have been transacted at the meeting
as originally called. The shareholders present at a duly organized meeting
may continue to transact business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
2.9 Manner of Acting
(a) If a quorum exists, action on a matter (other than the election of
directors) by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the action, unless
the affirmative vote of a greater number is required by these bylaws, the
Articles of Incorporation or the Nevada General Corporation Law.
(b) If a matter is to be voted on by a single group, action on that
matter is taken when voted upon by that voting group. If a matter is to be
voted on by two (2) or more voting groups, action on that matter is taken
only when voted upon by each of those voting groups counted separately.
Action may be taken by one voting group on a matter even though no action
is taken by another voting group entitled to vote on such matter.
2.10 Proxies
A shareholder may vote by proxy executed in writing by that shareholder
or by his or her attorney-in-fact. Such proxy shall be effective when received
by the Secretary or other officer or agent authorized to tabulate votes at the
meeting. A proxy shall become invalid eleven (11) months after the date of its
execution, unless otherwise expressly provided in the proxy. A proxy for a
specified meeting shall entitle the holder thereof to vote at any adjournment
of that meeting, but shall not be valid after the final adjournment thereof.
2.11 Voting of Shares
Each outstanding share entitled to vote shall be entitled to one vote
upon each matter submitted to a vote at a meeting of shareholders.
2.12 Voting for Directors
Each shareholder may vote, in person or by proxy, the number of shares
owned by such shareholder that are entitled to vote at an election of
directors, for as many persons as there are directors to be elected and for
whose election such shares have a right to vote. Unless otherwise provided
in the Articles of Incorporation, directors are elected by a plurality of the
votes cast by shares entitled to vote in the election at a meeting at which a
quorum is present.
2.13 Voting of Shares by Corporations
2.13.1 Shares Held by Another Corporation
Shares standing in the name of another corporation may be
voted by such officer, agent or proxy as the bylaws of such other
corporation may prescribe, or, in the absence of such provision, as the
board of directors of such corporation may determine; provided,
however, such shares are not entitled to vote if the Corporation owns,
directly or indirectly, a majority of the shares entitled to vote for
directors of such other corporation.
2.13.2 Shares Held by the Corporation
Authorized but unissued shares shall not be voted or counted
for determining whether a quorum exists at any meeting or counted in
determining the total number of outstanding shares at any given time.
Notwithstanding the foregoing, shares of its own stock held by the
Corporation in a fiduciary capacity may be counted for purposes of
determining whether a quorum exists, and may be voted by the Corporation.
2.14 Acceptance or Rejection of Shareholder Votes, Consents, Waivers and
Proxy Appointments
2.14.1 Documents Bearing Name of Shareholders
If the name signed on a vote, consent, waiver or proxy
appointment corresponds to the name of a shareholder, the Secretary or
other agent authorized to tabulate votes at the meeting may, if acting
in good faith, accept such vote, consent, waiver or proxy appointment
and give it effect as the act of the shareholder.
2.14.2 Documents Bearing Name of Third Parties
If the name signed on a vote, consent, waiver or proxy
appointment does not correspond to the name of its shareholder, the
Secretary or other agent authorized to tabulate votes at the meeting
may nevertheless, if acting in good faith, accept such vote, consent,
waiver or proxy appointment and give it effect as the act of the
shareholder if:
(a) The shareholder is an entity and the name signed
purports to be that of an officer or an agent of that entity;
(b) The name signed purports to be that of an
administrator, executor, guardian or conservator representing
the shareholder and, if the Secretary or other agent requests,
acceptable evidence of fiduciary status has been presented;
(c) The name signed purports to be that of a receiver
or trustee in bankruptcy of the shareholder, and, if the
Secretary or other agent requests, acceptable evidence of this
status has been presented;
(d) The name signed purports to be that of a pledgee,
beneficial owner or attorney-in-fact of the shareholder and,
if the Secretary or other agent requests, acceptable evidence
of the signatory's authority to sign has been presented; or
(e) Two or more persons are the shareholder as
co-owners or fiduciaries and the name signed purports to be
the name of at least one of the co-owners and the person
signing appears to be acting on behalf of all co-owners.
2.14.3 Rejection of Documents
The Secretary or other agent authorized to tabulate votes at
the meeting is entitled to reject a vote, consent, waiver or proxy
appointment if such agent, acting in good faith, has reasonable basis
for doubt about the validity of the signature on it or about the
signatory's authority to sign for the shareholder.
SECTION 3. BOARD OF DIRECTORS
3.1 General Powers
The business and affairs of the Corporation shall be managed by the
Board, except as may be otherwise provided in these Bylaws, the Articles of
Incorporation or the Nevada General Corporation Law.
3.2 Number, Tenure and Qualifications
The Board of Directors shall consist of no less than one (1) and no
more than fifteen (15) Directors, the specific number to be set by resolution
of the Board of Directors. The number of directors may be changed from
time to time by amendment to these Bylaws, but no decrease in the number of
directors shall shorten the term of any incumbent director. The terms of the
directors expire at the next annual shareholder's meeting following their
election. Despite the expiration of a director's term, however, the director
shall continue to serve until such director's successor is elected and
qualifies or until there is a decrease in the number of directors. Directors
need not be shareholders of the Corporation or residents of the State of
Nevada.
3.3 Annual and Regular Meetings
An annual meeting of the Board of Directors shall be held without
additional notice immediately after and at the same place as the annual
meeting of shareholders.
By resolution the Board of Directors, or any committee thereof, may
specify the time and place for holding regular meetings thereof without other
notice than such resolution.
3.4 Special Meetings
Special meetings of the Board of Directors or any committee designated
by the Board of Directors may be called by or at the request of the Chair of
the Board of Directors, or the President or any director and, in the case
of any special meeting of any committee designated by the Board of Directors,
by the Chair thereof. The person or persons authorized to call special
meetings may fix any place either within or without the State of Nevada as
the place for holding any special Board or committee meeting called by them.
3.5 Meetings by Telecommunications
Members of the Board of Directors or any committee designated by the
Board of Directors may participate in a meeting of the Board of Directors or
such committee by use of any means of telecommunications equipment pursuant to
which all persons participating may simultaneously hear each other during such
meeting. Participation by such method shall be deemed presence in person at
such meeting.
3.6 Notice of Special Meetings
Notice of a special Board of Directors or committee meeting specifying
the date, time and place of such meeting shall be given to a director in
writing or orally by telephone or in person as specified below. Neither the
business to be transacted at, nor the purpose of, any special meeting need be
specified in the notice of such meeting.
3.6.1 Personal Delivery
If delivery is by personal service, the notice shall be
effective if delivered at the address specified on the records of the
Corporation at least one day before the meeting.
3.6.2 Delivery by Mail
If notice is delivered by mail, the notice shall be deemed
effective if deposited in the official government mail at least five
(5) days before the meeting properly addressed to a director at his or
her address specified on the records of the Corporation with postage
prepaid.
3.6.3 Delivery by Telegraph
If notice is delivered by telegraph, the notice shall be
deemed effective if the content thereof is delivered to the telegraph
company by such time that the telegraph company guarantees delivery at
least one day before the meeting.
3.6.4 Oral Notice
If notice is delivered orally, by telephone or in person, the
notice shall be effective if personally given to a director at least
one day before the meeting.
3.6.5 Notice by Facsimile Transmission
If notice is delivered by facsimile transmission, the notice
shall be deemed effective if the content thereof is transmitted to the
office of a director, at the facsimile number specified on the records
of the Corporation, at least one day before the meeting, and receipt is
either confirmed by confirming transmission equipment or acknowledged
by the receiving office.
3.6.6 Notice by Private Courier
If notice is delivered by private courier, the notice shall be
deemed effective if delivered to the courier, properly addressed and
prepaid, by such time that the courier guarantees delivery at least one
day before the meeting.
3.7 Waiver of Notice
3.7.1 Written Waiver
Whenever any notice is required to be given to any director
pursuant to the provisions of these Bylaws, the Articles of
Incorporation or the Nevada General Corporation Law, a waiver thereof
in writing, executed at any time, specifying the meeting for which
notice is waived, signed by the person or persons entitled to such
notice, and filed with the minutes or corporate records, shall be
deemed equivalent to the giving of such notice.
3.7.2 Waiver by Attendance
The attendance of a director at a Board of Directors or
committee meeting shall constitute a waiver of notice of such meeting,
unless such director, at the beginning of the meeting, or promptly upon
such director's arrival, objects to holding the meeting or transacting
any business at the meeting and does not thereafter vote for or assent
to action taken at the meeting.
3.8 Quorum
A majority of the number of directors determined by or in the manner
provided by these Bylaws shall constitute a quorum for the transaction of
business at any Board of Directors meeting.
3.9 Manner of Acting
The act of the majority of the directors present at a Board of
Directors or committee meeting at which there is a quorum shall be the act
of the Board of Directors or committee, unless the vote of a greater
number is required by these Bylaws, the Articles of Incorporation or the
Nevada General Corporation Law.
3.10 Presumption of Assent
A director of the Corporation present at a Board of Directors or
committee meeting at which action on any corporate matter is taken shall be
deemed to have assented to the action taken unless such director objects at
the beginning of the meeting, or promptly upon such director's arrival,
to holding the meeting or transacting business at the meeting; or such
director's dissent is entered in the minutes of the meeting; or such director
delivers a written notice of dissent or abstention to such action with the
presiding officer of the meeting before the adjournment thereof; or such
director forwards such notice by registered mail to the Secretary of the
Corporation immediately after the adjournment of the meeting. A director
who voted in favor of such action may not thereafter dissent or abstain.
3.11 Action by Board of Directors or Committee Without a Meeting
Any action which could be taken at a meeting of the Board of Directors
or of any committee appointed by the Board of Directors may be taken without
a meeting, if a written consent setting forth the action so taken is signed by
each Director or by each committee member. The action shall be effective when
the last signature is placed on the consent, unless the consent specifies an
earlier or later date. Such written consent, which shall have the same effect
as a unanimous vote of the directors or such committee, shall be inserted in
the minute book as if it were the minutes of a Board of Directors or
committee meeting.
3.12 Resignation
Any director may resign at any time by delivering written notice to the
Chair of the Board of Directors, the Board of Directors, or to the registered
office of the Corporation. Such resignation shall take effect at the time
specified in the notice, or if no time is specified, upon delivery. Unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. Once delivered, a notice of resignation is
irrevocable unless revocation is permitted by the Board of Directors.
3.13 Removal
One or more members of the Board of Directors (including the entire
Board of Directors) may be removed at a meeting of shareholders called
expressly for that purpose, provided that the notice of such meeting
states that the purpose, or one of the purposes, of the meeting is such
removal. A member of the Board of Directors may be removed with or without
cause, unless the Articles of Incorporation permit removal for cause only,
by a vote of the holders of a majority of the shares then entitled to vote
on the election of the director. A director may be removed only if the
number of votes cast to remove the director exceeds the number of votes
cast to not remove the director. If a director is elected by a voting group
of shareholders, only the shareholders of that voting group may participate
in the vote to remove such director.
3.14 Vacancies
Any vacancy occurring on the Board of Directors, including a vacancy
resulting from an increase in the number of directors, may be filled by the
shareholders, by the Board of Directors, by the affirmative vote of a majority
of the remaining directors though less than a quorum of the Board of Directors,
or by a sole remaining director. A director elected to fill a vacancy shall be
elected for the unexpired term of his or her predecessor in office; except
that the term of a director elected by the Board of Directors to fill a
vacancy expires at the next shareholders' meeting at which directors are
elected. Any directorship to be filled by reason of an increase in the number
of directors may be filled by the affirmative vote of a majority of the number
of directors fixed by the Bylaws prior to such increase for a term of office
continuing only until the next election of directors by the shareholders. Any
directorship not so filled by the directors shall be filled by election at
the next annual meeting of shareholders or at a special meeting of
shareholders called for that purpose. If the vacant directorship is filled
by the shareholders and was held by a director elected by a voting group of
shareholders, then only the holders of shares of that voting group are
entitled to vote to fill such vacancy. A vacancy that will occur at a
specific later date by reason of a resignation effective at such later date
or otherwise may be filled before the vacancy occurs, but the new director
may not take office until the vacancy occurs.
3.15 Minutes
The Board of Directors shall keep minutes of its meetings and shall
cause them to be recorded in books kept for that purpose.
3.16 Executive and Other Committees
3.16.1 Creation of Committees
The Board of Directors, by resolution adopted by a majority of
the number of Directors fixed in the manner provided by these Bylaws,
may appoint standing or temporary committees, including an Executive
Committee, from its own number. The Board of Directors may invest such
committee(s) with such powers as it may see fit, subject to such
conditions as may be prescribed by the Board of Directors, these
Bylaws, the Articles of Incorporation and the Nevada General
Corporation Law.
3.16.2 Authority of Committees
Each committee shall have and may exercise all of the
authority of the Board of Directors to the extent provided in the
resolution of the Board of Directors designating the committee and any
subsequent resolutions pertaining thereto and adopted in like manner,
except that no such committee shall have the authority to (a) authorize
distributions, except as may be permitted by Section 3.16.2 (g) of
these Bylaws; (b) approve or propose to shareholders actions required
by the Nevada General Corporation Law to be approved by shareholders;
(c) fill vacancies on the Board of Directors or any committee thereof;
(d) adopt, amend or repeal these Bylaws; (e) amend the Certificate of
Incorporation; (f) approve a plan of merger not requiring shareholder
approval; or (g) authorize or approve reacquisition of shares, except
within limits prescribed by the Board of Directors.
3.16.3 Quorum and Manner of Acting
A majority of the number of Directors composing any committee
of the Board of Directors, as established and fixed by resolution of
the Board of Directors, shall constitute a quorum for the transaction
of business at any meeting of such committee.
3.16.4 Minutes of Meetings
All committees so appointed shall keep regular minutes of their
meetings and shall cause them to be recorded in books kept for
that purpose.
3.16.5 Resignation
Any member of any committee may resign at any time by
delivering written notice thereof to the Board of Directors, the Chair
of the Board of Directors or the Corporation. Any such resignation
shall take effect at the time specified in the notice, or if no time is
specified, upon delivery. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective. Once delivered, a notice of resignation is irrevocable
unless revocation is permitted by the Board of Directors.
3.16.6 Removal
The Board of Directors may remove from office any member of
any committee elected or appointed by it, but only by the affirmative
vote of not less than a majority of the number of directors fixed by or
in the manner provided by these Bylaws.
3.17 Compensation
By Board of Directors resolution, directors and committee members may
be paid their expenses, if any, of attendance at each Board of Directors or
committee meeting, or a fixed sum for attendance at each Board of
Directors or committee meeting, or a staled salary as director or a committee
member, or a combination of the foregoing. No such payment shall preclude any
director or committee member from serving the Corporation in any other
capacity and receiving compensation therefor.
SECTION 4. OFFICERS
4.1 Number
The Officers of the Corporation shall be a President and a Secretary,
each of whom shall be appointed by the Board of Directors. One or more Vice
Presidents, a Treasurer and such other Officers and assistant Officers,
including a Chair of the Board of Directors, may be appointed by the Board of
Directors; such officers and assistant officers to hold office for such
period, have such authority and perform such duties as are provided in these
Bylaws or as may be provided by resolution of the Board of Directors. Any
Officer may be assigned by the Board of Directors any additional title that
the Board of Directors deems appropriate. The Board of Directors may delegate
to any officer or agent the power to appoint any such subordinate officers or
agents and to prescribe their respective terms of office, authority and
duties. Any two or more offices may be held by the same person.
4.2 Appointment and Term of Office
The officers of the Corporation shall be appointed annually by the
Board of Directors at the Board of Directors meeting held after the annual
meeting of the shareholders. If the appointment of officers is not made at
such meeting, such appointment shall be made as soon thereafter as a Board
of Directors meeting conveniently may be held. Unless an officer dies,
resigns, or is removed from office, he or she shall hold office until the
next annual meeting of the Board of Directors or until his or her successor
is appointed.
4.3 Resignation
Any officer may resign at any time by delivering written notice to the
Corporation. Any such resignation shall take effect at the time specified in
the notice, or if no time is specified, upon delivery. Unless otherwise
specified therein, the acceptance of such resignation shall not be necessary
to make it effective. Once delivered, a notice of resignation is irrevocable
unless revocation is permitted by the Board of Directors.
4.4 Removal
Any officer or agent appointed by the Board of Directors may be removed
by the Board of Directors, with or without cause, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Appointment of an officer or agent shall not of itself create contract rights.
4.5 Vacancies
A vacancy in any office because of death, resignation, removal,
disqualification, creation of a new office or any other cause may be filled by
the Board of Directors for the unexpired portion of the term, or for
a new term established by the Board of Directors. If a resignation is made
effective at a later date, and the Corporation accepts such future effective
date, the Board of Directors may fill the pending vacancy before the
effective date, if the Board of Directors provides that the successor does
not take office until the effective date.
4.6 Chair of the Board of Directors
If appointed, the Chair of the Board of Directors shall perform such
duties as shall be assigned to him or her by the Board of Directors from
time to time and shall preside over meetings of the Board of Directors and
shareholders unless another officer is appointed or designated by the Board
of Directors as Chair of such meeting.
4.7 President
The President shall be the chief executive officer of the Corporation
unless some other Officer is so designated by the Board of Directors, shall
preside over meetings of the Board of Directors and shareholders in the
absence of a Chair of the Board of Directors and, subject to the Board of
Directors' control, shall supervise and control all of the assets, business
and affairs of the Corporation. The President shall have authority to sign
deeds, mortgages, bonds, contracts, or other instruments, except when the
signing and execution thereof have been expressly delegated by the Board of
Directors or by these Bylaws to some other officer or agent of the
Corporation, or are required by law to be otherwise signed or executed by
some other officer or in some other manner. In general, the President shall
perform all duties incident to the office of President and such other duties
as are prescribed by the Board of Directors from time to time.
4.8 Vice President
In the event of the death of the President or his or her inability to
act, the Vice President (or if there is more than one Vice President, the Vice
President who was designated by the Board of Directors as the successor to the
President, or if no Vice President is so designated, the Vice President first
appointed to such office) shall perform the duties of the President, except as
may be limited by resolution of the Board of Directors, with all the powers of
and subject to all the restrictions upon the President. Vice Presidents shall
have, to the extent authorized by the President or the Board of Directors, the
same powers as the President to sign deeds, mortgages, bonds, contracts or
other instruments. Vice Presidents shall perform such other duties as from
time to time may be assigned to them by the President or by the Board of
Directors.
4.9 Secretary
The Secretary shall (a) prepare and keep the minutes of meetings of the
shareholders and the Board of Directors in one or more books provided for that
purpose; (b) see that all notices are duly given in accordance with the
provisions of these Bylaws or as required by law; (c) be responsible for
custody of the corporate records and seal of the corporation; (d) keep
registers of the post office address of each shareholder and Director;
(e) have general charge of the stock transfer books of the Corporation;
and (f) in general perform all duties incident to the office of Secretary
and such other duties as from time to time may be assigned to him or her by
the President or by the Board of Directors. In the absence of the Secretary,
an Assistant Secretary may perform the duties of the Secretary.
4.10 Treasurer
If required by the Board of Directors, the Treasurer shall give a bond
for the faithful discharge of his or her duties in such amount and with such
surety or sureties as the Board of Directors shall determine. The Treasurer
shall have charge and custody of and be responsible for all funds and
securities of the Corporation; receive and give receipts for moneys due and
payable to the Corporation from any source whatsoever, and deposit all such
moneys in the name of the Corporation in banks, trust companies or other
depositories selected in accordance with the provisions of these Bylaws; and
in general perform all of the duties incident to the office of Treasurer and
such other duties as from time to time may be assigned to him or her by the
President or by the Board of Directors. In the absence of the Treasurer, an
Assistant Treasurer may perform the duties of the Treasurer.
4.11 Salaries
The salaries of the Officers shall be fixed from time to time by the
Board of Directors or by any person or persons to whom the Board of Directors
has delegated such authority. No officer shall be prevented from receiving
such salary by reason of the fact that he or she is also a Director of the
Corporation.
SECTION 5. CONTRACTS, LOANS,
CHECKS AND DEPOSITS
5.1 Contracts
The Board of Directors may authorize any Officer or Officers, or agent
or agents, to enter into any contract or execute and deliver any instrument in
the name of and on behalf of the Corporation. Such authority may be general or
confined to specific instances.
5.2 Loans to the Corporation
No loans shall be contracted on behalf of the Corporation and no
evidences of indebtedness shall be issued in its name unless authorized by a
resolution of the Board of Directors. Such authority may be general or
confined to specific instances.
5.3 Loans to Directors
The Corporation shall not lend money to or guarantee the obligation of
a Director unless (a) the particular loan or guarantee is approved by a
majority of the votes represented by the outstanding voting shares of all
classes, voting as a single voting group, excluding the votes of the shares
owned by or voted under the control of the benefitted director; or (b) the
Board of Directors determines that the loan or guarantee benefits the
Corporation and either approves the specific loan or guarantee or a general
plan authorizing the loans and guarantees. The fact that a loan or guarantee
is made in violation of this provision shall not affect the borrower's
liability on the loan.
5.4 Checks, Drafts, Etc.
All checks, drafts or other orders for the payment of money, notes or
other evidences of indebtedness issued in the name of the Corporation shall
be signed by such officer or officers, or agent or agents, of the Corporation
and in such manner as is from time to time determined by resolution of the
Board of Directors.
5.5 Deposits
All funds of the Corporation not otherwise employed shall be deposited
from time to time to the credit of the Corporation in such banks, trust
companies or other depositories as the Board of Directors may select.
SECTION 6. CERTIFICATES FOR SHARES
AND THEIR TRANSFER
6.1 Issuance of Shares
No shares of the Corporation shall be issued unless authorized by the
Board of Directors, which authorization shall include the maximum number of
shares to be issued and the consideration to be received for each share.
Before the Corporation issues shares, the Board of Directors shall determine
that the consideration received or to be received for such shares is adequate.
Such determination by the Board of Directors shall be conclusive insofar as
the adequacy of consideration for the issuance of shares relates to whether
the shares are validly issued, fully paid and nonassessable.
6.2 Escrow for Shares
The Board of Directors may authorize the placement in escrow of shares
issued for a contract for future services or benefits or a promissory note,
or may authorize other arrangements to restrict the transfer of shares, and
may authorize the crediting of distributions in respect of such shares
against their purchase price, until the services are performed, the note is
paid or the benefits received. If the services are not performed, the note
is not paid, or the benefits are not received, the Board of Directors may
cancel, in whole or in part, such shares placed in escrow or restricted
and such distributions credited.
6.3 Certificates for Shares
Certificates representing shares of the Corporation shall be in such
form as shall be determined by the Board of Directors Such certificates shall
be signed by any two of the following officers: the Chair of the Board of
Directors, the President, any Vice President, the Treasurer, the Secretary or
any Assistant Secretary. Any or all of the signatures on a certificate may be
facsimiles if the certificate is manually signed on behalf of a transfer agent
or a registrar other than the Corporation itself or an employee of the
Corporation. All certificates shall be consecutively numbered or otherwise
identified.
6.4 Stock Records
The stock transfer books shall be kept at the registered office or
principal place of business of the Corporation or at the office of the
Corporation's transfer agent or registrar. The name and address of each person
to whom certificates for shares are issued, together with the class and number
of shares represented by each such certificate and the date of issue thereof,
shall be entered on the stock transfer books of the Corporation. The person in
whose name shares stand on the books of the Corporation shall be deemed by the
Corporation to be the owner thereof for all purposes.
6.5 Restriction on Transfer
6.5.1 Securities Laws
Except to the extent that the Corporation has obtained an
opinion of counsel acceptable to the Corporation that transfer
restrictions are not required under applicable securities laws, or has
otherwise satisfied itself that such transfer restrictions are not
required, all certificates representing shares of the Corporation shall
bear conspicuously on the front or back of the certificate a legend or
legends describing the restriction or restrictions.
6.5.2 Other Restrictions
In addition, the front or back of all certificates shall
include conspicuous written notice of any further restrictions which
may be imposed on the transferability of such shares.
6.6 Transfer of Shares
Transfer of shares of the Corporation shall be made only on the stock
transfer books of the Corporation pursuant to authorization or document of
transfer made by the holder of record thereof or by his or her legal
representative, who shall furnish proper evidence of authority to transfer,
or by his or her attorney-in-fact authorized by power of attorney duly
executed and filed with the Secretary of the Corporation. All certificates
surrendered to the Corporation for transfer shall be cancelled and no new
certificate shall be issued until the former certificates for a like number
of shares shall have been surrendered and cancelled.
6.7 Lost or Destroyed Certificates
In the case of a lost, destroyed or mutilated certificate, a new
certificate may be issued therefor upon such terms and indemnity to the
Corporation as the Board of Directors may prescribe.
6.8 Transfer Agent and Registrar
The Board of Directors may from time to time appoint one or more
Transfer Agents and one or more Registrars for the shares of the Corporation,
with such powers and duties as the Board of Directors shall determine by
resolution.
6.9 Officer Ceasing to Act
In case any officer who has signed or whose facsimile signature has
been placed upon a stock certificate shall have ceased to be such officer
before such certificate is issued, it may be issued by the Corporation with
the same effect as if the signer were such officer at the date of its
issuance.
6.10 Fractional Shares
The Corporation shall not issue certificates for fractional shares.
SECTION 7. BOOKS AND RECORDS
The Corporation shall keep correct and complete books and records of
account, stock transfer books, minutes of the proceedings of its shareholders
and Board of Directors and such other records as may be necessary or
advisable.
SECTION 8. FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year;
provided, however, that the Board of Directors may select a different fiscal
year at any time for purposes of federal income taxes, or otherwise.
SECTION 9. SEAL
The seal of the Corporation, if any, shall consist of the name of the
Corporation and the state of its incorporation
SECTION 10. INDEMNIFICATION
10.1 Right to Indemnification of Directors and Officers
Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereafter a "proceeding"),
by reason of the fact that he or she is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a
director or officer of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to an
employee benefit plan hereinafter an "indemnitee"), whether the basis of
such proceeding is alleged action in an official capacity as a director or
officer or in any other capacity while serving as a director or officer shall
be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Nevada General Corporation Law, as the same exists or may
hereafter be amended, (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than permitted prior thereto), against all expense,
liability and loss (including attorney's fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid insettlement) reasonably incurred or
suffered by such indemnitee in connectiontherewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director or
officer and shall inure to the benefit of the indemnitee's heirs, executors
and administrators; provided, however, that, except as provided in
Section 10.3 of these Bylaws or with respect to proceedings to enforce rights
to indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation.
10.2 Right to Advancement of Expenses
The right to indemnification conferred in Section 10.1 of these Bylaws
shall include the right to be paid by the Corporation the expenses incurred
in defending any proceeding for which such right to indemnification is
applicable in advance of its final disposition (hereinafter an "advancement
of expenses"); provided, however, that, if the Nevada General Corporation
Law requires, an advancement of expenses incurred by an indemnitee in his or
her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the
Corporation of an undertaking (hereinafter an "undertaking"), by or on behalf
of such indemnitee, to repay all amounts so advanced if it shall ultimately
be determined by final judicial decision from which there is no further
right to appeal (hereinafter a "final adjudication") that such indemnitee
is not entitled to be indemnified for such expenses under this section or
otherwise.
10.3 Right of Indemnitee to Bring Suit
The rights to indemnification and to the advancement of expenses
conferred in Sections 10.1 and 10.2 of these Bylaws shall be contract rights.
If a claim under Sections 10.1 and 10.2 of these Bylaws is not paid in full
by the Corporation within sixty (60) days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement
of expenses, in which case the applicable period shall be twenty (20) days,
the indemnitee may at any time thereafter bring suit against the Corporation
to recover an advancement of expenses pursuant to the terms of an undertaking,
the indemnitee shall be entitled to be paid also the expense of prosecuting
or defending such suit. In (i) any suit brought by the indemnitee to enforce
a right toindemnification hereunder (but not in a suit brought by the
indemnitee toenforce a right to an advancement of expenses) it shall be a
defense that, and(ii) in any suit by the Corporation to recover an advancement
of expensespursuant to the terms of an undertaking the Corporation shall be
entitled torecover such expenses upon a final adjudication that, the
indemnitee has not metany applicable standard for indemnification set forth
in the Nevada GeneralCorporation Law. Neither the failure of the Corporation
(including its board ofdirectors, independent legal counsel, or its
stockholders) to have made adetermination prior to the commencement of such
suit that indemnification of theindemnitee is proper in the circumstances
because the indemnitee has met theapplicable standard of conduct set forth in
Nevada General Corporation Law, noran actual determination by the Corporation
(including its board of directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee
to enforce a right to indemnification or to an advancement of expenses
hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this section or otherwise shall be on the Corporation.
10.4 Non-Exclusivity of Rights
The rights to indemnification and to the advancement of expenses
conferred in this article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, the Corporation's
certificate of incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
10.5 Insurance
The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or
loss under the Nevada General Corporation Law.
10.6 Indemnification of Employees and Agents of the Corporation
The Corporation may, to the extent authorized from time to time by the
board of directors, grant rights to indemnification, and to the advancement of
expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this article with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
10.7 No Presumption of Bad Faith
The termination of any proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the person did not act in good faith and in
a manner which the person reasonably believed to be in or not opposed to the
best interests of this Corporation, or, with respect to any criminal
proceeding, that the person had reasonable cause to believe that the
conduct was unlawful.
10.8 Survival of Rights
The rights conferred on any person by this Bylaw shall continue as to a
person who has ceased to be a director, officer, employee or other agent and
shall inure to the benefit of the heirs, executors and administrators of such
a person.
10.9 Amendments to Law
For purposes of this Bylaw, the meaning of "law" within the phrase "to
the fullest extent not prohibited by law" shall include, but not be limited
to, the Nevada General Corporation Law, as the same exists on the date hereof
or as it may be amended; provided, however, that in the case of any such
amendment, such amendment shall apply only to the extent that it permits the
Corporation to provide broader indemnification rights than the Act permitted
the Corporation to provide prior to such amendment.
10.10 Savings Clause
If this Bylaw or any portion hereof shall be invalidated on any ground
by any court of competent jurisdiction, the Corporation shall indemnify each
director, [officer or other agent] to the fullest extent permitted by any
applicable portion of this Bylaw that shall not have been invalidated, or by
any other applicable law.
10.11 Certain Definitions
For the purposes of this Section, the following definitions shall apply:
(a) The term "proceeding" shall be broadly construed and shall include,
without limitation, the investigation, preparation, prosecution, defense,
settlement and appeal of any threatened, pending or completed action, suit or
proceeding, whether brought in the right of the Corporation or otherwise and
whether civil, criminal, administrative or investigative, in which the
director or officer may be or may have been involved as a party or otherwise
by reason of the fact that the director or officer is or was a director or
officer of the Corporation or is or was serving at the request of the
Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise.
(b) The term "expenses" shall be broadly construed and shall include,
without limitation, all costs, charges and expenses (including fees and
disbursements of attorneys, accountants and other experts) actually and
reasonably incurred by a director or officer in connection with any
proceeding, all expenses of investigations, judicial or administrative
proceedings or appeals, and any expenses of establishing a right to
indemnification under these Bylaws, but shall not include amounts paid in
settlement, judgments or fines.
(c) "Corporation" shall mean Too Gourmet, Inc. and any successor
corporation thereof.
(d) Reference to a "director" or "officer" of the Corporation shall
include, without limitation, situations where such person is serving at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise.
(e) References to "other enterprises" shall include employee benefit
plans. References to "fines" shall include any excise taxes assessed on a
person with respect to any employee benefit plan. References to "serving at
the request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or
involves services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants, or beneficiaries.
A person who acted in good faith and in a manner the person reasonably
believed to be in the interest of the participants and beneficiaries of
an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Bylaw.
SECTION 11. AMENDMENTS
These Bylaws may be altered, amended or repealed and new Bylaws may be
adopted by the Board of Directors at any regular or special meeting of the
Board of Directors; provided, however, that the shareholders, in amending or
repealing a particular Bylaw, may provide expressly that the Board of
Directors may not amend or repeal that Bylaw. The shareholders may also make,
alter, amend and repeal the Bylaws of the Corporation at any annual meeting
or at a special meeting called for that purpose. All Bylaws made by the
Board of Directors may be amended, repealed, altered or modified by the
shareholders at any regular or special meeting called for that purpose.
The foregoing Bylaws were adopted by the Board of Directors of the
Corporation on April 10, 2001.
/s/ Cynthia Bergendahl
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Cynthia Bergendahl, Secretary
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