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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d)
of
the Securities Exchange Act of 1934
Date
of Report (date of earliest event reported): August 21,
2024
Expion360
Inc.
(Exact
name of registrant as specified in its charter)
Nevada |
|
001-41347 |
|
81-2701049 |
(State
or other jurisdiction of |
|
(Commission |
|
(I.R.S.
Employer |
incorporation
or organization) |
|
File
Number) |
|
Identification
No.) |
2025
SW Deerhound Avenue |
Redmond,
OR 97756 |
(Address
of principal executive offices and zip code) |
(541)
797-6714
(Registrant's
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
[
]
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[X]
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[
]
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ]
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities
registered pursuant to Section 12(b) of the Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange
on which registered |
Common
Stock, par value $0.001 per share |
|
XPON |
|
The
Nasdaq Capital
Market |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging
growth company [X]
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act
Item 3.03. Material Modification to Rights of Security
Holders.
On August 21, 2024, the Board of Directors (the “Board”)
of Expion360 Inc. (the “Company”) amended the Company’s Bylaws to change the quorum
requirements for stockholder meetings from a majority of the voting power represented in person or by proxy to one-third of the voting
power represented in person or by proxy. A copy of the Amended and Restated Bylaws is filed as Exhibit 3.1 to this Current Report
on Form 8-K (this “Current Report”), and is incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change
in Fiscal Year.
The information set forth
in Item 3.03 of this Current Report, including Exhibit 3.1 attached hereto, is incorporated by reference into this Item 5.03.
Item 8.01. Other Events.
2024 Annual Meeting of
Shareholders
On August 21, 2024, the Board
determined that the Company’s 2024 Annual Meeting of Shareholders will be held on Friday, September 27, 2024 at 9:00 a.m. Pacific
Time (the “2024 Annual Meeting”) instead of Friday, October 4, 2024.
Also on August 21, 2024,
the Company filed a preliminary proxy statement with the Securities and Exchange Commission (the “SEC”) relating to the 2024
Annual Meeting. The preliminary proxy statement contains a number of proposals, including (i) approval of a reverse stock split (the “Reverse
Stock Split Proposal”) of the Company’s outstanding shares of common stock, par value $0.001 per share (the “Common
Stock”), (ii) approval of a reduction in the Company’s authorized shares (if, and only if, the Reverse Stock Split Proposal
is approved and implemented), (iii) approval, in accordance with Nasdaq Listing Rule 5635(d), of the issuance of certain warrants to purchase
shares of the Common Stock in connection with an offering and sale of securities of the Company that was consummated on August 8, 2024
(if, and only if, the Reverse Stock Split Proposal is approved and implemented), (iv) election of five directors, (v) ratification of
the Company’s independent registered public accounting firm, and (vi) approval of adjournments of the 2024 Annual Meeting if necessary
or appropriate.
With respect to the Reverse
Stock Split Proposal, the Company is seeking shareholder approval of an amendment to the Company’s Articles of Incorporation (the
“Amendment”) to effect a reverse stock split of the Common Stock at a ratio between 1-for-50 and 1-for-100 at any time within
one year after shareholder approval is obtained, with the timing of the filing of the Amendment, and the exact reverse stock split ratio,
to be determined in the sole discretion of the Board (the “Reverse Stock Split”).
The Company’s primary
objective in effectuating the Reverse Stock Split, if implemented, is to raise the per share trading price of the Common Stock in a proactive
effort to regain compliance with Nasdaq’s $1.00 minimum bid price listing requirement.
Additional Information
and Where to Find It
This communication may be
deemed to be solicitation material in connection with the 2024 Annual Meeting. This Current Report does not contain all the information
that should be considered by Company shareholders concerning the 2024 Annual Meeting. In connection with the matters to be considered
at the 2024 Annual Meeting, the Company has filed a preliminary proxy statement on Schedule 14A and plans to file a definitive proxy statement
on Schedule 14A with the SEC. Shareholders and other interested persons are encouraged to read the preliminary proxy statement and, once
available, they are encouraged to read the definitive proxy statement and other relevant documents filed with the SEC.. Investors and
other interested parties will be able to obtain the proxy materials free of charge on the Company’s investor relations website,
investors.expion360.com, or on the SEC’s website, www.sec.gov.
Participants in the Solicitation
The Company and its directors
and executive officers may be deemed participants in the solicitation of proxies from the Company’s shareholders with respect to
the 2024 Annual Meeting. Information regarding the directors and executive officers, including a description of their interests in the
Company, can be found in the Company’s proxy materials filed in connection with the 2024 Annual Meeting, which will be available
free of charge on the websites indicated above.
Cautionary Note Regarding
Forward-Looking Statements
This Current Report contains
certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended, which statements are subject to considerable risks and uncertainties. The Company intends
such forward-looking statements to be covered by the safe harbor provisions contained in the Private Securities Litigation Reform Act
of 1995. All statements other than statements of historical facts included in this press release, including statements about the Company’s
beliefs and expectations, are "forward-looking statements" and should be evaluated as such. Forward-looking statements may be
identified by words such as “anticipates,” “believes,” “estimates,” “expects,” “intends,”
“may,” “plans,” “projects,” “seeks,” “should,” “suggest”, “will,”
and similar expressions. Forward-looking statements in this press release include, without limitation, statements regarding the timing
and completion of the 2024 Annual Meeting, the voting outcome on the proposals being considered at the 2024 Annual Meeting, including
the Reverse Stock Split Proposal, the Company’s ability to regain or sustain compliance with Nasdaq’s minimum bid price listing
requirement in a timely manner or at all, and the Company’s ability to maintain compliance with Nasdaq’s other continued listing
standards. The Company has based these forward-looking statements on its current expectations and projections about future events. Forward-looking
statements are subject to and involve risks, uncertainties, and assumptions that may cause the Company’s actual results, performance
or achievements to be materially different from any future results, performance or achievements predicted, assumed or implied by such
forward-looking statements, including, without limitation, risks, uncertainties and assumptions related to the trading price of the Common
Stock following effectiveness of the Reverse Stock Split, as well as the risks disclosed under Item 1A. “Risk Factors” in
the Company’s most recently Annual Report on Form 10-K filed with the SEC, as updated by the Company’s subsequently filed
Quarterly Reports on Form 10-Q. This Current Report speaks as of the date indicated above. The Company undertakes no obligation to update
any forward-looking statements, whether as a result of new information, future events, or otherwise, except as required by law. The Company
expressly disclaims any obligation to update or revise any forward-looking statements found herein to reflect any future changes in the
Company’s expectations of results or any future change in events, except as required by law.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
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.
|
EXPION360
INC. |
|
|
|
Date:
August 27, 2024 |
By: |
/s/
Brian Schaffner |
|
Name: |
Brian
Schaffner |
|
Title: |
Chief
Executive Officer |
Exhibit 3.1
AMENDED AND RESTATED
BYLAWS
OF
EXPION360 INC.
DATED AUGUST 21, 2024
ARTICLE I
OFFICES
Section 1.1 Principal Office. The principal
office and place of business of Expion360 Inc. (the "Corporation") shall be at 2025 SW Deerhound Ave., Redmond, OR 97756.
Section 1.2 Other Offices. Other offices and
places of business either within or without the State of Nevada may be established from time to time by resolution of the board of directors
of the Corporation (the "Board of Directors") or as the business of the Corporation may require. The street address of the Corporation's
resident agent is the registered office of the Corporation in Nevada.
ARTICLE II
STOCKHOLDERS
Section 2.1 Annual Meeting. The annual meeting
of the stockholders of the Corporation shall be held on such date and at such time as may be designated from time to time by the Board
of Directors. At the annual meeting, directors shall be elected and any other business may be transacted as may be properly brought before
the meeting.
Section 2.2 Special Meetings.
(a) Special meetings of the stockholders may be called
only by the chairman of the board, if any, or the chief executive officer, if any, or, if there be no chairman of the board and no chief
executive officer, by the president, and shall be called by the secretary upon the written request of at least a majority of the authorized
number of directors. Such request shall state the purpose or purposes of the meeting. Stockholders shall have no right to request or call
a special meeting.
(b) No business shall be acted upon at a special meeting
of stockholders except as set forth in the notice of the meeting.
Section 2.3 Place of Meetings. Any meeting of
the stockholders of the Corporation may be held at the Corporation's registered office in the State of Nevada or at such other place in
or out of the State of Nevada and United States as may be designated in the notice of meeting. A waiver of notice signed by all stockholders
entitled to vote may designate any place for the holding of such meeting.
Section 2.4 Notice of Meetings; Waiver of Notice.
(a) The president, chief executive officer, if any,
a vice president, the secretary, an assistant secretary or any other individual designated by the Board of Directors shall sign and deliver
or cause to be delivered to the stockholders written notice of any stockholders' meeting not less than ten (10) days, but not more than
sixty (60) days, before the date of such meeting. The notice shall state the place, date and time of the meeting and the purpose or purposes
for which the meeting is called. The notice shall contain or be accompanied by such additional information as may be required by Nevada
Revised Statutes ("NRS"), including, without limitation, NRS 78.379, 92A.120 or 92A.410.
(b) In the case of an annual meeting, subject
to Section 2.13 below, any proper business may be presented for action, except that (i) if a proposed plan of merger, conversion or exchange
is submitted to a vote, the notice of the meeting must state that the purpose, or one of the purposes, of the meeting is to consider
the plan of merger, conversion or exchange and must contain or be accompanied by a copy or summary of the plan; and (ii) if a proposed
action creating dissenters' rights is to be submitted to a vote, the notice of the meeting must state that the stockholders are or may
be entitled to assert dissenters' rights under NRS 92A.300 to 92A.500, inclusive, and be accompanied by a copy of those sections.
(c) A copy of the notice shall be personally delivered
or mailed postage prepaid to each stockholder of record entitled to vote at the meeting at the address appearing on the records of the
Corporation. Upon mailing, service of the notice is complete, and the time of the notice begins to run from the date upon which the notice
is deposited in the mail. If the address of any stockholder does not appear upon the records of the Corporation or is incomplete, it will
be sufficient to address any notice to such stockholder at the registered office of the Corporation.
(d) The written certificate of the individual
signing a notice of meeting, setting forth the substance of the notice or having a copy thereof attached, the date the notice was mailed
or personally delivered to the stockholders and the addresses to which the notice was mailed, shall be prima facie evidence of the manner
and fact of giving such notice.
(e) Any stockholder may waive notice of any meeting
by a signed writing, either before or after the meeting. Such waiver of notice shall be deemed the equivalent of the giving of such notice.
Section 2.5 Determination of Stockholders of
Record.
(a) For the purpose of determining the stockholders
entitled to notice of and to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any distribution
or the allotment of any rights, or entitled to exercise any rights in respect of any change, conversion, or exchange of stock or for the
purpose of any other lawful action, the directors may fix, in advance, a record date, which shall not be more than sixty (60) days nor
less than ten (10) days before the date of such meeting, if applicable.
(b) If no record date is fixed, the record date
for determining stockholders: (i) entitled
to notice of and to vote at a meeting of stockholders shall be at
the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; and (ii) for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of
or to vote at any meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting and must fix a new record date if the meeting is adjourned to a date more than 60
days later than the date set for the original meeting.
Section 2.6 Quorum; Adjourned Meetings.
(a) Unless the Articles of Incorporation provide
for a different proportion, stockholders holding at least one-third of the voting power of the Corporation's capital stock, represented
in person or by proxy (regardless of whether the proxy has authority to vote on all matters), are necessary to constitute a quorum for
the transaction of business at any meeting. If, on any issue, voting by classes or series is required by the laws of the State of Nevada,
the Articles of Incorporation or these Bylaws, at least one-third of the voting power, represented in person or by proxy (regardless of
whether the proxy has authority to vote on all matters), within each such class or series is necessary to constitute a quorum of each
such class or series.
(b) If a quorum is not represented, a majority
of the voting power represented or the person presiding at the meeting may adjourn the meeting from time to time until a quorum shall
be represented. At any such adjourned meeting at which a quorum shall be represented, any business may be transacted which might have
been transacted as originally called. When a stockholders' meeting is adjourned to another time or place hereunder, notice need not be
given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. However,
if a new record date is fixed for the adjourned meeting, notice of the adjourned meeting must be given to each stockholder of record as
of the new record date. The stockholders present at a duly convened meeting at which a quorum is present may continue to transact
business until adjournment, notwithstanding the departure of enough stockholders to leave less than a quorum of the voting power.
Section 2.7 Voting.
(a) Unless otherwise provided in the NRS or in
the Articles of Incorporation, each stockholder of record, or such stockholder's duly authorized proxy, shall be entitled to one (1) vote
for each share of voting stock standing registered in such stockholder's name at the close of business on the record date.
(b) Except as otherwise provided herein, all votes
with respect to shares standing in the name of an individual at the close of business on the record date (including pledged shares) shall
be cast only by that individual or such individual's duly authorized proxy. With respect to shares held by a representative of the estate
of a deceased stockholder, or a guardian, conservator, custodian or trustee, even though the shares do not stand in the name of such holder,
votes may be cast by such holder upon proof of such representative capacity. In the case of shares under the control of a receiver, the
receiver may cast votes carried by such shares even though the shares do not stand of record in the name of the receiver; provided, that
the order of a court of competent jurisdiction which appoints the receiver contains the authority to cast votes carried by such shares.
If shares stand of record in the name of a minor, votes may be cast by the duly appointed guardian of the estate of such minor only if
such guardian has provided the Corporation with written proof of such appointment.
(c) With respect to shares standing of record
in the name of another corporation, partnership, limited liability company or other legal entity on the record date, votes may be cast:
(i) in the case of a corporation, by such individual as the bylaws of such other corporation prescribe, by such individual as may be appointed
by resolution of the Board of Directors of such other corporation or by such individual (including, without limitation, the officer making
the authorization) authorized in writing to do so by the chairman of the board, if any, president, chief executive officer, if any, or
any vice president of such corporation; and (ii) in the case of a partnership, limited liability company or other legal entity, by an
individual representing such stockholder upon presentation to the Corporation of satisfactory evidence of his or her authority to do so.
(d) Notwithstanding anything to the contrary contained
herein and except for the Corporation's shares held in a fiduciary capacity, the Corporation shall not vote, directly or indirectly, shares
of its own stock owned by it; and such shares shall not be counted in determining the total number of outstanding shares entitled to vote.
(e) Any holder of shares entitled to vote on any
matter may cast a portion of the votes in favor of such matter and refrain from casting the remaining votes or cast the same against the
proposal, except in the case of elections of directors. If such holder entitled to vote does vote any of such stockholder's shares affirmatively
and fails to specify the number of affirmative votes, it will be conclusively presumed that the holder is casting affirmative votes with
respect to all shares held.
(f) With respect to shares standing of record
in the name of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, husband and wife
as community property, tenants by the entirety, voting trustees or otherwise and shares held by two or more persons (including proxy holders)
having the same fiduciary relationship in respect to the same shares, votes may be cast in the following manner:
(i) If only one person votes, the vote
of such person binds all.
(ii) If more than one person casts votes, the act
of the majority so voting binds all.
(iii) If more than one person casts votes, but the
vote is evenly split on a particular matter, the votes shall be deemed cast proportionately, as split.
(g) If a quorum is present, unless the Articles
of Incorporation, these Bylaws, the NRS, or other applicable law provide for a different proportion, action by the stockholders entitled
to vote on a matter, other than the election of directors, is approved by and is the act of the stockholders if the number of votes cast
in favor of the action exceeds the number of votes cast in opposition to the action, unless voting by classes or series is required for
any action of the stockholders by the laws of the State of Nevada, the
Articles of Incorporation or these Bylaws, in which case the number of votes cast in favor of the action by the voting power of each such
class or series must exceed the number of votes cast in opposition to the action by the voting power of each such class or series.
(h) If a quorum is present, directors shall be
elected by a plurality of the votes cast.
Section 2.8 Proxies. At any meeting of
stockholders, any holder of shares entitled to vote may designate, in a manner permitted by the laws of the State of Nevada, another person
or persons to act as a proxy or proxies. Every proxy shall continue in full force and effect until its expiration or revocation in a manner
permitted by the laws of the State of Nevada.
Section 2.9 No Action Without A Meeting.
No action shall be taken by the stockholders except at an annual or special meeting of stockholders called and noticed in the manner required
by these Bylaws. Prior to the completion of the initial public offering of the Corporation, the stockholders may take action by written
consent. After the completion of the initial public offering of the Corporation, the stockholders may not in any circumstance take action
by written consent.
Section 2.10 Organization.
(a) Meetings of stockholders shall be presided
over by the chairman of the board, or, in the absence of the chairman, by the vice-chairman of the board, or in the absence of the vice-chairman,
the president, or, in the absence of the president, by the chief executive officer, if any, or, in the absence of the foregoing persons,
by a chairman designated by the Board of Directors, or, in the absence of such designation by the Board of Directors, by a chairman chosen
at the meeting by the stockholders entitled to cast a majority of the votes which all stockholders present in person or by proxy are entitled
to cast. The secretary, or in the absence of the secretary an assistant secretary, shall act as secretary of the meeting, but in the absence
of the secretary and any assistant secretary the chairman of the meeting may appoint any person to act as secretary of the meeting. The
order of business at each such meeting shall be as determined by the chairman of the meeting. The chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable
for the proper conduct of the meeting, including, without limitation, the establishment of procedures for the maintenance of order and
safety, limitation on the time allotted to questions or comments on the affairs of the Corporation, restrictions on entry to such meeting
after the time prescribed for the commencement thereof and the opening and closing of the voting polls.
(b) The chairman of the meeting may appoint one
or more inspectors of elections. The inspector or inspectors may (i) ascertain the number of shares outstanding and the voting power of
each; (ii) determine the number of shares represented at a meeting and the validity of proxies or ballots; (iii) count all votes and ballots;
(iv) determine any challenges made to any determination made by the inspector(s); and (v) certify the determination of the number of shares
represented at the meeting and the count of all votes and ballots.
Section 2.11 Absentees' Consent to Meetings.
Transactions of any meeting of the stockholders are as valid as though had at a meeting duly held after regular call and notice if a quorum
is represented, either in person or by proxy, and if, either before or after the meeting, each of the persons entitled to vote, not represented
in person or by proxy (and those who, although present, either object at the beginning of the meeting to the transaction of any business
because the meeting has not been lawfully called or convened or expressly object at the meeting to the consideration of matters not included
in the notice which are legally or by the terms of these Bylaws required to be included therein), signs a written waiver of notice and/or
consent to the holding of the meeting or an approval of the minutes thereof. All such waivers, consents, and approvals shall be filed
with the corporate records and made a part of the minutes of the meeting. Attendance of a person at a meeting shall constitute a waiver
of notice of such meeting, except when the person objects at the beginning of the meeting to the transaction of any business because the
meeting is not lawfully called, noticed or convened and except that attendance at a meeting is not a waiver of any right to object to
the consideration of matters not properly included in the notice if such objection is expressly made at the time any such matters are
presented at the meeting. Neither the business to be transacted at nor the purpose of any regular or special meeting of stockholders need
be specified in any written waiver of notice or consent, except as otherwise provided in these Bylaws.
Section 2.12 Director Nominations. Nominations
of persons for election to the Board of Directors of the Corporation may be made by the Board of Directors, by a committee appointed by
the Board of Directors, or by any stockholder of record entitled to vote in the election of directors who complies with the notice procedures
set forth in Section 2.13 below.
Section 2.13 Advance Notice of Stockholder
Proposals and Director Nominations by Stockholders. At any annual or special meeting of stockholders, proposals by stockholders and
persons nominated for election as directors by stockholders shall be considered only if advance notice thereof has been timely given by
the stockholder as provided herein and such proposals or nominations are otherwise proper for consideration under applicable law, the
Articles of Incorporation and these Bylaws. Notice of any proposal to be presented by any stockholder or of the name of any person to
be nominated by any stockholder for election as a director of the Corporation at any meeting of stockholders shall be delivered to the
secretary of the Corporation at its principal office not less than sixty (60) nor more than ninety (90) days prior to the day of the meeting;
provided, however, that if the date of the meeting is first publicly announced or disclosed (in a public filing or otherwise) less than
seventy (70) days prior to the day of the meeting, such advance notice shall be given not more than ten (10) days after such date is first
so announced or disclosed. Public notice shall be deemed to have been given more than seventy (70) days in advance of the annual meeting
if the Corporation shall have previously disclosed, in these Bylaws or otherwise, that the annual meeting in each year is to be held on
a determinable date, unless and until the Board of Directors determines to hold the meeting on a different date. For purposes of this
Section, public disclosure of the date of a forthcoming meeting may be made by the Corporation not only by giving formal notice of the
meeting, but also by notice to a national securities exchange, the Nasdaq National Market or the Nasdaq SmallCap Market (if a corporation's
common stock is then listed on such exchange or quoted on either such Nasdaq market), by filing a report under Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Act") (if the Corporation is then subject thereto), by mailing to stockholders,
or by a general press release.
Any stockholder who gives notice of any such proposal
shall deliver therewith the text of the proposal to be presented and a brief written statement of the reasons why such stockholder favors
the proposal and setting forth such stockholder's name and address, the number and class of all shares of each class of stock of the Corporation
beneficially owned by such stockholder and any material interest of such stockholder in the proposal (other than as a stockholder). Any
stockholder desiring to nominate any person for election as a director of the Corporation shall deliver with such notice a statement,
in writing, setting forth (a) the name of the person to be nominated; (b) the number and class of all shares of each class of stock of
the Corporation beneficially owned by such person; (c) the information regarding such person required by paragraphs (a), (e) and (f) of
Item 401 of Regulation S-K adopted by the Securities and Exchange Commission (the "SEC") (or the corresponding provisions of
any regulation subsequently adopted by the SEC applicable to the Corporation), and any other information regarding such person which would
be required to be included in a proxy statement filed pursuant to the proxy rules of the SEC, had such nominee been nominated, or intended
to be nominated by the Board of Directors; (d) such person's signed consent to serve as a director of the Corporation if elected; (e)
such stockholder's name and address and the number and class of all shares of each class of stock of the Corporation beneficially owned
by such stockholder; (f) a representation that such stockholder is a holder of record of stock of the Corporation entitled to vote at
such meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; and
(g) a description of all arrangements or understandings between the stockholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nominations are to be made by the stockholder. As used herein, shares "beneficially
owned" shall mean all shares as to which such person, together with such person's affiliates and associates (as defined in Rule 12b-2
under the Act), may be deemed to beneficially own pursuant to Rules 13d-3 and 13d-5 under the Act, as well as all shares as to which such
person, together with such person's affiliates and associates, has a right to become the beneficial owner pursuant to any agreement or
understanding, whereupon the exercise of warrants, options or rights to convert or exchange (whether such rights are exercisable immediately
or only after the passage of time or the occurrence of conditions). The person presiding at the meeting shall determine whether such notice
has been duly given and shall direct that proposals and nominees not be considered if such notice has not been duly given. Notwithstanding
anything in these Bylaws to the contrary, no business shall be conducted at a meeting except in accordance with the procedures set forth
in this Section. Notwithstanding the foregoing provisions hereof, a stockholder shall also comply with all applicable requirements of
the Act, and the rules and regulations thereunder with respect to the matters set forth herein.
ARTICLE III
DIRECTORS
Section 3.1 General Powers; Performance of
Duties. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, except as
otherwise provided in Chapter 78 of the NRS or the Articles of Incorporation.
Section 3.2 Number, Tenure, and Qualifications.
The Board of Directors of the Corporation shall consist of at least one (1) individual(s) and not more than eleven (11) individuals. The
number of directors within the foregoing fixed minimum and maximum may be established and changed from time to time by resolution adopted
by the Board of Directors of the Corporation without amendment to these Bylaws or the Articles of Incorporation. Each director shall hold
office until his or her successor shall be elected or appointed and qualified or until his or her earlier death, retirement, disqualification,
resignation or removal. No reduction of the number of directors shall have the effect of removing any director prior to the expiration
of his or her term of office. No provision of this Section shall be restrictive upon the right of the Board of Directors to fill vacancies
or upon the right of the stockholders to remove directors as is hereinafter provided.
Section 3.3 Chairman of the Board. The
Board of Directors shall elect a chairman of the board from the members of the Board of Directors who shall preside at all meetings of
the Board of Directors and stockholders at which he or she shall be present and shall have and may exercise such powers as may, from time
to time, be assigned to him or her by the Board of Directors, these Bylaws or as may be provided by law.
Section 3.4 Vice-Chairman of the Board.
The Board of Directors shall elect a vice-chairman of the board from the members of the Board of Directors who shall preside at all meetings
of the Board of Directors and stockholders at which he or she shall be present and the chairman is not present and shall have and may
exercise such powers as may, from time to time, be assigned to him or her by the Board of Directors, these Bylaws or as may be provided
by law.
Section 3.5 Elections and Terms. The Board
of Directors, other than those who may be elected by the holders of any classes or series of stock having a preference over the common
stock as to dividends or upon liquidation, shall be elected for a term ending at the next following Annual Meeting of the Stockholders
and until their successors have been duly elected and qualified.
Section 3.6 Removal and Resignation of Directors.
Except as otherwise provided in the NRS, any director may be removed from office with or without cause by the affirmative vote of the
holders of not less than two-thirds (2/3) of the voting power of the issued and outstanding stock of the Corporation entitled to vote
generally in the election of directors (voting as a single class) excluding stock entitled to vote only upon the happening of a fact or
event unless such fact or event shall have occurred. In addition, the Board of Directors of the Corporation, by majority vote, may declare
vacant the office of a director who has been declared incompetent by an order of a court of competent jurisdiction, convicted of a felony
or found to be unsuitable to serve as a director of the Corporation. Any director may resign effective upon giving written notice, unless
the notice specifies a later time for effectiveness of such resignation, to the chairman of the board, if any, the president or the secretary,
or in the absence of all of them, any other officer.
Section 3.7 Vacancies; Newly Created Directorships.
Any vacancies on the Board of Directors resulting from death, resignation, retirement, disqualification, removal from office, or other
cause, and newly created directorships resulting from any increase in the authorized number of directors, may be filled by a majority
vote of the directors then in office or by a sole remaining director, in either case though less than a quorum, and the director(s) so
chosen shall hold office for a term expiring at the next annual meeting of stockholders at which the term of the class to which he or
she has been elected expires, or until his or her earlier resignation or removal. No decrease in the number of directors constituting
the Board of Directors shall shorten the term of any incumbent directors.
Section 3.8 Annual and Regular Meetings.
Immediately following the adjournment of, and at the same place as, the annual or any special meeting of the stockholders at which directors
are elected, the Board of Directors, including directors newly elected, shall hold its annual meeting without call or notice, other than
this provision, to elect officers and to transact such further business as may be necessary
or appropriate. The Board of Directors may provide by resolution the place, date, and hour for holding regular meetings between annual
meetings.
Section 3.9 Special Meetings. Except as
otherwise required by law, special meetings of the Board of Directors may be called only by the chairman of the board, if any, or if there
be no chairman of the board, by any of the chief executive officer, if any, the president, or the secretary, and shall be called by the
chairman of the board, if any, the president, the chief executive officer, if any, or the secretary upon the request of at least a majority
of the authorized number of directors. If the chairman of the board, or if there be no chairman of the board, each of the president, chief
executive officer, if any, and secretary, refuses or neglects to call such special meeting, a special meeting may be called by a written
request signed by at least a majority of the authorized number of directors.
Section 3.10 Place of Meetings. Any regular
or special meeting of the directors of the Corporation may be held at such place as the Board of Directors, or in the absence of such
designation, as the notice calling such meeting, may designate. A waiver of notice signed by the directors may designate any place for
the holding of such meeting.
Section 3.11 Notice of Meetings. Except
as otherwise provided in Section 3.8 above, there shall be delivered to each director at the address appearing for him or her on the records
of the Corporation, at least twenty-four (24) hours before the time of such meeting, a copy of a written notice of any meeting (a) by
delivery of such notice personally, (b) by mailing such notice postage prepaid, (c) by facsimile, (d) by overnight courier, (e) by telegram,
or (f) by electronic transmission or electronic writing, including, but not limited to, email. If mailed to an address inside the United
States, the notice shall be deemed delivered two (2) business days following the date the same is deposited in the United States mail,
postage prepaid. If mailed to an address outside the United States, the notice shall be deemed delivered four (4) business days following
the date the same is deposited in the United States mail, postage prepaid. If sent via facsimile, by electronic transmission or electronic
writing, including, but not limited to, email, the notice shall be deemed delivered upon sender's receipt of confirmation of the successful
transmission. If sent via overnight courier, the notice shall be deemed delivered the business day following the delivery of such notice
to the courier. If the address of any director is incomplete or does not appear upon the records of the Corporation it will be sufficient
to address any notice to such director at the registered office of the Corporation. Any director may waive notice of any meeting, and
the attendance of a director at a meeting and oral consent entered on the minutes of such meeting shall constitute waiver of notice of
the meeting unless such director objects, prior to the transaction of any business, that the meeting was not lawfully called, noticed
or convened. Attendance for the express purpose of objecting to the transaction of business thereat because the meeting was not properly
called or convened shall not constitute presence or a waiver of notice for purposes hereof.
Section 3.12 Quorum; Adjourned Meetings.
(a) A majority of the directors in office, at
a meeting duly assembled, is necessary to constitute a quorum for the transaction of business.
(b) At any meeting of the Board of Directors where
a quorum is not present, a majority of those present may adjourn, from time to time, until a quorum is present, and no notice of such
adjournment shall be required. At any adjourned meeting where a quorum is present, any business may be transacted which could have been
transacted at the meeting originally called.
Section 3.13 Manner of Acting. Except as
provided in Section 3.14 below, the affirmative vote of a majority of the directors present at a meeting at which a quorum is present
is the act of the Board of Directors.
Section 3.14 Super-majority Approval. Notwithstanding
anything to the contrary contained in these Bylaws or the Articles of Incorporation, the following actions may be taken by the Corporation
only upon the approval of two-thirds of the directors present at a meeting at which a quorum is present is the act of the Board of Directors:
(a) any voluntary dissolution or liquidation of
the Corporation.
(b) the sale of all or substantially all of the
assets of the Corporation.
(c) the filing of a voluntary petition of bankruptcy
by the Corporation.
Section 3.15 Telephonic Meetings. Members
of the Board of Directors or of any committee designated by the Board of Directors may participate in a meeting of the Board of Directors
or such committee by means of a telephone conference or video or similar method of communication by which all persons participating in
such meeting can hear each other. Participation in a meeting pursuant to this Section 3.15 constitutes presence in person at the meeting.
Section 3.16 Action Without Meeting. Any
action required or permitted to be taken at a meeting of the Board of Directors or of a committee thereof may be taken without a meeting
if, before or after the action, a written consent thereto is signed by all of the members of the Board of Directors or the committee.
The written consent may be signed in counterparts, including, without limitation, facsimile counterparts, and shall be filed with the
minutes of the proceedings of the Board of Directors or committee.
Section 3.17 Powers and Duties.
(a) Except as otherwise restricted by the laws
of the State of Nevada or the Articles of Incorporation, the Board of Directors has full control over the business and affairs of the
Corporation. The Board of Directors may delegate any of its authority to manage, control or conduct the business of the Corporation to
any standing or special committee, or to any officer or agent, and to appoint any persons to be agents of the Corporation with such powers,
including the power to subdelegate, and upon such terms as may be deemed fit.
(b) The Board of Directors, in its discretion,
or the officer of the Corporation presiding at a meeting of stockholders, in his discretion, may (i) require that any votes cast at such
meeting shall be cast by written ballot, and/or (ii) submit any contract or act for approval or ratification at any annual meeting of
the stockholders or any special meeting properly called and noticed for the purpose of considering any such contract or act, provided
a quorum is present.
(c) The Board of Directors may, by resolution
passed by a majority of the board, designate one or more committees, each committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Subject to applicable
law and to the extent provided in the resolution of the Board of Directors, any such committee shall have and may exercise all the powers
of the Board of Directors in the management of the business and affairs of the Corporation. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by the Board of Directors. The committees shall keep regular
minutes of their proceedings and report the same to the Board of Directors when required.
Section 3.18 Compensation. The Board of
Directors, without regard to personal interest, may establish the compensation of directors for services in any capacity. If the Board
of Directors establishes the compensation of directors pursuant to this subsection, such compensation is presumed to be fair to the Corporation
unless proven unfair by a preponderance of the evidence.
Section 3.19 Organization. Meetings of the Board
of Directors shall be presided over by the chairman of the board, or in the absence of the chairman of the board by the vice-chairman,
or in his or her absence by a chairman chosen at the meeting. The secretary, or in the absence of the secretary an assistant secretary,
shall act as secretary of the meeting, but in the absence of the secretary and any assistant secretary the chairman of the meeting may
appoint any person to act as secretary of the meeting. The order of business at each such meeting shall be as determined by the chairman
of the meeting.
ARTICLE IV
OFFICERS
Section 4.1 Election. The Board of Directors,
at its annual meeting, shall elect and appoint a chief executive officer, president, a secretary, and a treasurer. Said officers shall
serve until the next succeeding annual meeting of the Board of Directors and until their respective successors are elected and appointed
and shall qualify or until their earlier resignation or removal. The Board of Directors may from time
to time, by resolution, elect or appoint such other officers and agents as it may deem advisable, who shall hold office at the pleasure
of the board, and shall have such powers and duties and be paid such compensation as may be directed by the board. Any individual may
hold two or more offices.
Section 4.2 Removal; Resignation. Any officer
or agent elected or appointed by the Board of Directors may be removed by the Board of Directors with or without cause. Any officer may
resign at any time upon written notice to the Corporation. Any such removal or resignation shall be subject to the rights, if any, of
the respective parties under any contract between the Corporation and such officer or agent.
Section 4.3 Vacancies. Any vacancy in any
office because of death, resignation, removal or otherwise may be filled by the Board of Directors for the unexpired portion of the term
of such office.
Section 4.4 Chief Executive Officer. The
Board of Directors may elect a chief executive officer who, subject to the supervision and control of the Board of Directors, shall have
the ultimate responsibility for the management and control of the business and affairs of the Corporation, and shall perform such other
duties and have such other powers which are delegated to him or her by the Board of Directors, these Bylaws or as may be provided by law.
Section 4.5 President. The president, subject
to the supervision and control of the Board of Directors, shall in general actively supervise and control the business and affairs of
the Corporation. The president shall keep the Board of Directors fully informed as the Board of Directors may request and shall consult
the Board of Directors concerning the business of the Corporation. The president shall perform such other duties and have such other powers
which are delegated and assigned to him or her by the Board of Directors if any, these Bylaws or as may be provided by law.
Section 4.6 Vice Presidents. The Board
of Directors may elect one or more vice presidents. In the absence or disability of the president, or at the president's request, the
vice president or vice presidents, in order of their rank as fixed by the Board of Directors, and if not ranked, the vice presidents in
the order designated by the Board of Directors, or in the absence of such designation, in the order designated by the president, shall
perform all of the duties of the president, and when so acting, shall have all the powers of, and be subject to all the restrictions on
the president. Each vice president shall perform such other duties and have such other powers which are delegated and assigned to him
or her by the Board of Directors, the president, these Bylaws or as may be provided by law.
Section 4.7 Secretary. The secretary shall
attend all meetings of the stockholders, the Board of Directors and any committees, and shall keep, or cause to be kept, the minutes of
proceeds thereof in books provided for that purpose. He or she shall keep, or cause to be kept, a register of the stockholders of the
Corporation and shall be responsible for the giving of notice of meetings of the stockholders, the Board of Directors and any committees,
and shall see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law. The secretary shall
be custodian of the corporate seal, the records of the Corporation, the stock certificate books, transfer books and stock ledgers, and
such other books and papers as the Board of Directors or appropriate committee may direct. The secretary shall perform all other duties
commonly incident to his or her office and shall perform such other duties which are assigned to him or her by the Board of Directors,
the chief executive officer, if any, the president, these Bylaws or as may be provided by law.
Section 4.8 Assistant Secretaries. An assistant
secretary shall, at the request of the secretary, or in the absence or disability of the secretary, perform all the duties of the secretary.
He or she shall perform such other duties as are assigned to him or her by the Board of Directors, the chief executive officer, if any,
the president, these Bylaws or as may be provided by law.
Section 4.9 Treasurer. The treasurer, subject
to the order of the Board of Directors, shall have the care and custody of, and be responsible for, all of the money, funds, securities,
receipts and valuable papers, documents and instruments of the Corporation, and all books and records relating thereto. The treasurer
shall keep, or cause to be kept, full and accurate books of accounts of the Corporation's transactions, which shall be the property of
the Corporation, and shall render financial reports and statements of condition of the Corporation when so requested by the Board of Directors,
the chairman of the board, if any, the chief executive officer, if any, or the president. The treasurer shall perform all other duties
commonly incident to his or her office and such other duties as may, from time to time, be assigned to him or her by the Board of Directors,
the chief executive officer, if any, the president, these Bylaws or as may be provided by law. The treasurer shall, if required by the
Board of Directors, give bond to the Corporation in such sum and with such security as shall be approved by the Board of Directors for
the faithful performance of all the duties of the treasurer and for restoration to the Corporation, in the event of the treasurer's death,
resignation, retirement or removal from office, of all books, records, papers, vouchers, money and other property in the treasurer's custody
or control and belonging to the Corporation. The expense of such bond shall be borne by the Corporation. If a chief financial officer
of the Corporation has not been appointed, the treasurer may be deemed the chief financial officer of the Corporation.
Section 4.10 Assistant Treasurers. An assistant
treasurer shall, at the request of the treasurer, or in the absence or disability of the treasurer, perform all the duties of the treasurer.
He or she shall perform such other duties which are assigned to him or her by the Board of Directors, the chief executive officer, the
president, the treasurer, these Bylaws or as may be provided by law. The Board of Directors may require an assistant treasurer to give
a bond to the Corporation in such sum and with such security as it may approve, for the faithful performance of the duties of the assistant
treasurer, and for restoration to the Corporation, in the event of the assistant treasurer's death, resignation, retirement or removal
from office, of all books, records, papers, vouchers, money and other property in the assistant treasurer's custody or control and belonging
to the Corporation. The expense of such bond shall be borne by the Corporation.
Section 4.11 Execution of Negotiable Instruments,
Deeds and Contracts. All checks, drafts, notes, bonds, bills of exchange, and orders for the payment of money of the Corporation;
all deeds, mortgages, proxies, powers of attorney and other written contracts, documents, instruments and agreements to which the Corporation
shall be a party; and all assignments or endorsements of stock certificates, registered bonds or other securities owned by the Corporation
shall be signed in the name of the Corporation by such officers or other persons as the Board of Directors may from time to time designate.
The Board of Directors may authorize the use of the facsimile signatures of any such persons. Any officer of the Corporation shall be
authorized to attend, act and vote, or designate another officer or an agent of the Corporation to attend, act and vote, at any meeting
of the owners of any entity in which the Corporation may own an interest or to take action by written consent in lieu thereof. Such officer
or agent, at any such meeting or by such written action, shall possess and may exercise on behalf of the Corporation any and all rights
and powers incident to the ownership of such interest.
ARTICLE V
CAPITAL STOCK
Section 5.1 Issuance. Shares of the Corporation's
authorized stock shall, subject to any provisions or limitations of the laws of the State of Nevada, the Articles of Incorporation or
any contracts or agreements to which the Corporation may be a party, be issued in such manner, at such times, upon such conditions and
for such consideration as shall be prescribed by the Board of Directors.
Section 5.2 Stock Certificates and Uncertified
Shares. Every holder of stock in the Corporation shall be entitled to have a certificate signed by or in the name of the Corporation
by the president, the chief executive officer, if any, or a vice president, and by the secretary or an assistant secretary, of the Corporation
(or any other two officers or agents so authorized by the Board of Directors), certifying the number of shares of stock owned by him,
her or it in the Corporation; provided, however, that the Board of Directors may authorize the issuance of uncertificated shares of some
or all of any or all classes or series of the Corporation's stock. Any such issuance of uncertificated shares shall have no effect on
existing certificates for shares until such certificates are surrendered to the Corporation, or on the respective rights and obligations
of the stockholders. Whenever such certificate is countersigned or otherwise authenticated by a transfer agent or a transfer clerk and
by a registrar (other than the Corporation), then a facsimile of the signatures of any corporate officers or agents, the transfer agent,
transfer clerk or the registrar of the Corporation may be printed or lithographed upon the certificate in lieu of the actual signatures.
In the event that any officer or officers who have signed, or whose facsimile signatures have been used on any certificate or certificates
for stock cease to be an officer or officers because of death, resignation or other reason, before the certificate or certificates for
stock have been delivered by the Corporation, the certificate or certificates may nevertheless be adopted by the Corporation and be issued
and delivered as though the person or persons who signed the certificate or certificates, or whose facsimile signature or signatures have
been used thereon, had not ceased to be an officer or officers of the Corporation.
Within a reasonable time after the issuance or
transfer of uncertificated shares, the Corporation shall send to the registered owner thereof a written statement certifying the number
of shares owned by him, her or it in the Corporation and, at least annually thereafter, the Corporation shall provide to such stockholders
of record holding uncertificated shares, a written statement confirming the information contained in such written statement previously
sent. Except as otherwise expressly provided by law, the rights and obligations of the stockholders shall be identical whether or not
their shares of stock are represented by certificates.
Each certificate representing shares shall state
the following upon the face thereof: the name of the state of the Corporation's organization; the name of the person to whom issued; the
number and class of shares and the designation of the series, if any, which such certificate represents; the par value of each share,
if any, represented by such certificate or a statement that the shares are without par value. Certificates of stock shall be in such form
consistent with law as shall be prescribed by the Board of Directors. No certificate shall be issued until the shares represented thereby
are fully paid. In addition to the above, all certificates evidencing shares of the Corporation's stock or other securities issued by
the Corporation shall contain such legend or legends as may from time to time be required by the NRS, or such other federal, state or
local laws or regulations then in effect.
Section 5.3 Surrendered; Lost or Destroyed
Certificates. All certificates surrendered to the Corporation, except those representing shares of treasury stock, shall be canceled
and no new certificate shall be issued until the former certificate for a like number of shares shall have been canceled, except that
in case of a lost, stolen, destroyed or mutilated certificate, a new one may be issued therefor. However, any stockholder applying for
the issuance of a stock certificate in lieu of one alleged to have been lost, stolen, destroyed or mutilated shall, prior to the issuance
of a replacement, provide the Corporation with his, her or its affidavit of the facts surrounding the loss, theft, destruction or mutilation
and, if required by the Board of Directors, an indemnity bond in an amount not less than twice the current market value of the stock,
and upon such terms as the treasurer or the Board of Directors shall require which shall indemnify the Corporation against any loss, damage,
cost or inconvenience arising as a consequence of the issuance of a replacement certificate.
Section 5.4 Replacement Certificate. When
the Articles of Incorporation are amended in any way affecting the statements contained in the certificates for outstanding shares of
capital stock of the Corporation or it becomes desirable for any reason, in the discretion of the Board of Directors, including, without
limitation, the merger of the Corporation with another Corporation or the conversion or reorganization of the Corporation, to cancel any
outstanding certificate for shares and issue a new certificate therefor conforming to the rights of the holder, the Board of Directors
may order any holders of outstanding certificates for shares to surrender and exchange the same for new certificates within a reasonable
time to be fixed by the Board of Directors. The order may provide that a holder of any certificate(s) ordered to be surrendered shall
not be entitled to vote, receive distributions or exercise any other rights of stockholders of record until the holder has complied with
the order, but the order operates to suspend such rights only after notice and until compliance.
Section 5.5 Transfer of Shares. No transfer
of stock shall be valid as against the Corporation except on surrender and cancellation of the certificates therefor accompanied by an
assignment or transfer by the registered owner made either in person or under assignment. Whenever any transfer shall be expressly made
for collateral security and not absolutely, the collateral nature of the transfer shall be reflected in the entry of transfer in the records
of the Corporation.
Section 5.6 Transfer Agent; Registrars.
The Board of Directors may appoint one or more transfer agents, transfer clerks and registrars of transfer and may require all certificates
for shares of stock to bear the signature of such transfer agents, transfer clerks and/or registrars of transfer.
Section 5.7 Miscellaneous. The Board of
Directors shall have the power and authority to make such rules and regulations not inconsistent herewith as it may deem expedient concerning
the issue, transfer, and registration of certificates for shares of the Corporation's stock.
Section 5.8 Nevada Control Share Law. The provisions
of NRS 78.378 to NRS 78.3793, inclusive, do not, and shall not, apply to any acquisition of a controlling interest in the Corporation.
ARTICLE VI
DISTRIBUTIONS
Distributions may be declared, subject to the provisions
of the laws of the State of Nevada and the Articles of Incorporation, by the Board of Directors and may be paid in cash, property, shares
of corporate stock, or any other medium. The Board of Directors may fix in advance a record date, as provided in Section 2.5 above, prior
to the distribution for the purpose of determining stockholders entitled to receive any distribution.
ARTICLE VII
RECORDS; REPORTS; SEAL; AND FINANCIAL MATTERS
Section 7.1 Records. All original records
of the Corporation, shall be kept at the principal office of the Corporation by or under the direction of the secretary or at such other
place or by such other person as may be prescribed by these Bylaws or the Board of Directors.
Section 7.2 Corporate Seal. The Board of
Directors may, by resolution, authorize a seal, and the seal may be used by causing it, or a facsimile, to be impressed or affixed or
reproduced or otherwise. Except when otherwise specifically provided herein, any officer of the Corporation shall have the authority to
affix the seal to any document requiring it.
Section 7.3 Fiscal Year-End. The fiscal year-end
of the Corporation shall be such date as may be fixed from time to time by resolution of the Board of Directors.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Indemnification and Insurance.
(a) Indemnification of Directors and Officers.
(i) For purposes of this Article, (A) "Indemnitee"
shall mean each director or officer who was or is a party to, or is threatened to be made a party to, or is otherwise involved in, any
Proceeding (as hereinafter defined), by reason of the fact that he or she is or was a director or officer of the Corporation or a director
or officer or an affiliate of a predecessor corporation or member, manager or managing member of a predecessor limited liability company
or affiliate of such limited liability company or is or was serving in any capacity at the request of the Corporation as a director, officer,
employee, agent, partner, member, manager or fiduciary of, or in any other capacity for, another corporation or any partnership, joint
venture, limited liability company, trust, or other enterprise; and (B) "Proceeding" shall mean any threatened, pending,
or completed action, suit or proceeding (including, without limitation, an action, suit or proceeding by or in the right of the Corporation),
whether civil, criminal, administrative, or investigative.
(ii) Each Indemnitee shall be indemnified and held
harmless by the Corporation to the fullest extent permitted by Nevada law, against all expense, liability and loss (including, without
limitation, attorneys' fees, judgments, fines, taxes, penalties, and amounts paid or to be paid in settlement) reasonably incurred or
suffered by the Indemnitee in connection with any Proceeding; provided that such Indemnitee either is not liable pursuant to NRS 78.138
or acted in good faith and in a manner such Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation
and, with respect to any Proceeding that is criminal in nature, had no reasonable cause to believe that his or her conduct was unlawful.
The termination of any Proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, does
not, of itself, create a presumption that the Indemnitee is liable pursuant to NRS 78.138 or did not act in good faith and in a manner
in which he or she reasonably believed to be in or not opposed to the best interests of the Corporation, or that, with respect to any
criminal proceeding he or she had reasonable cause to believe that his or her conduct was unlawful. The Corporation shall not indemnify
an Indemnitee for any claim, issue or matter as to which the Indemnitee has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the Corporation or for any amounts paid in settlement to the Corporation, unless
and only to the extent that the court in which the Proceeding was brought or other court of competent jurisdiction determines upon application
that in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts as the
court deems proper. Except as so ordered by a court and for advancement of expenses pursuant to this Section, indemnification may not
be made to or on behalf of an Indemnitee if a final adjudication establishes that his or her acts or omissions involved intentional misconduct, fraud or a knowing
violation of law and was material to the cause of action. Notwithstanding anything to the contrary contained in these Bylaws, no director
or officer may be indemnified for expenses incurred in defending any threatened, pending, or completed action, suit or proceeding (including
without limitation, an action, suit or proceeding by or in the right of the Corporation), whether civil, criminal, administrative or investigative,
that such director or officer incurred in his or her capacity as a stockholder.
(iii) Indemnification pursuant to this Section shall
continue as to an Indemnitee who has ceased to be a director or officer of the Corporation or member, manager or managing member of a
predecessor limited liability company or affiliate of such limited liability company or a director, officer, employee, agent, partner,
member, manager or fiduciary of, or to serve in any other capacity for, another corporation or any partnership, joint venture, limited
liability company, trust, or other enterprise and shall inure to the benefit of his or her heirs, executors and administrators.
(iv) The expenses of Indemnitees must be paid by
the Corporation or through insurance purchased and maintained by the Corporation or through other financial arrangements made by the Corporation,
as they are incurred and in advance of the final disposition of the Proceeding, upon receipt of an undertaking by or on behalf of the
director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that he or she is not entitled
to be indemnified by the Corporation. To the extent that a director or officer of the Corporation is successful on the merits or otherwise
in defense of any Proceeding, or in the defense of any claim, issue or matter therein, the Corporation shall indemnify him or her against
expenses, including attorneys' fees, actually and reasonably incurred in by him or her in connection with the defense.
(b) Indemnification of Employees and Other
Persons. The Corporation may, by action of its Board of Directors and to the extent provided in such action, indemnify employees,
advisors, and other persons as though they were Indemnitees.
(c) Non-Exclusivity of Rights. The rights
to indemnification provided in this Article shall not be exclusive of any other rights that any person may have or hereafter acquire under
any statute, provision of the Articles of Incorporation or these Bylaws, agreement, vote of stockholders or directors, or otherwise.
(d) Insurance. The Corporation may purchase
and maintain insurance or make other financial arrangements on behalf of any Indemnitee for any liability asserted against him or her
and liability and expenses incurred by him or her in his or her capacity as a director, officer, employee, member, managing member or
agent, or arising out of his or her status as such, whether or not the Corporation has the authority to indemnify him or her against such
liability and expenses.
(e) Other Financial Arrangements. The other
financial arrangements which may be made by the Corporation may include the following (i) the creation of a trust fund; (ii) the establishment
of a program of self-insurance; (iii) the securing of its obligation of indemnification by granting a security interest or other lien
on any assets of the Corporation; (iv) the establishment of a letter of credit, guarantee or surety. No financial arrangement made pursuant
to this subsection may provide protection for a person adjudged by a court of competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable for intentional misconduct, fraud, or a knowing violation of law, except with respect to advancement of expenses
or indemnification ordered by a court.
(f) Other Matters Relating to Insurance or
Financial Arrangements. Any insurance or other financial arrangement made on behalf of a person pursuant to this Section may be provided
by the Corporation or any other person approved by the Board of Directors, even if all or part of the other person's stock or other securities
is owned by the Corporation. In the absence of fraud (i) the decision of the Board of Directors as to the propriety of the terms and conditions
of any insurance or other financial arrangement made pursuant to this Section and the choice of the person to provide the insurance or
other financial arrangement is conclusive; and (ii) the insurance or other financial arrangement is not void or voidable and does not
subject any director approving it to personal liability for his action; even if a director approving the insurance or other financial
arrangement is a beneficiary of the insurance or other financial arrangement.
Section 8.2 Amendment. The provisions of this
Article VIII relating to indemnification shall constitute a contract between the Corporation and each of its directors and officers which
may be modified as to any director or officer only with that person's consent or as specifically provided in this Section. Notwithstanding
any other provision of these Bylaws relating to their amendment generally, any repeal
or amendment of this Article which is adverse to any director or officer shall apply to such director or officer only on a prospective
basis, and shall not limit the rights of an Indemnitee to indemnification with respect to any action or failure to act occurring prior
to the time of such repeal or amendment. Notwithstanding any other provision of these Bylaws (including, without limitation, Article X
below), no repeal or amendment of these Bylaws shall affect any or all of this Article VIII so as to limit or reduce the indemnification
in any manner unless adopted by (a) the unanimous vote of the directors of the Corporation then serving, or (b) by the stockholders as
set forth in Article X hereof; provided that no such amendment shall have a retroactive effect inconsistent with the preceding sentence.
ARTICLE IX
CHANGES IN NEVADA LAW
References in these Bylaws to Nevada law or the NRS
or to any provision thereof shall be to such law as it existed on the date these Bylaws were adopted or as such law thereafter may be
changed; provided that (a) in the case of any change which expands the liability of directors or officers or limits the indemnification
rights or the rights to advancement of expenses which the Corporation may provide in Article VIII hereof, the rights to limited liability,
to indemnification and to the advancement of expenses provided in the Articles of Incorporation and/or these Bylaws shall continue as
theretofore to the extent permitted by law; and (b) if such change permits the Corporation, without the requirement of any further action
by stockholders or directors, to limit further the liability of directors or limit the liability of officers or to provide broader indemnification
rights or rights to the advancement of expenses than the Corporation was permitted to provide prior to such change, then liability thereupon
shall be so limited and the rights to indemnification and the advancement of expenses shall be so broadened to the extent permitted by
law.
ARTICLE X
AMENDMENT OR REPEAL
Section 10.1 Amendment of Bylaws.
(a) Board of Directors. In furtherance
and not in limitation of the powers conferred by statute, the Board of Directors of the Corporation is expressly authorized to adopt,
repeal, alter, amend and rescind these Bylaws.
(b) Stockholders. Notwithstanding Section
10.1(a) above, these Bylaws may be rescinded, altered, amended or repealed in any respect by the affirmative vote of the holders of at
least sixty-six and two-thirds percent (66 2/3%) of the outstanding voting power of the Corporation, voting together as a single class.
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