DWOG Deep Well Oil and Gas (CE)

 

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 report): September 29, 2015

 

DEEP WELL OIL & GAS, INC.

(Exact name of registrant as specified in its charter)

 

NEVADA		0-24012		98-0501168
(State or other jurisdiction		(Commission File Number)		(IRS Employer
of  incorporation)				Identification No.)

 

Suite 700, 10150 – 100 Street, Alberta, Canada		T5J 0P6
(Address of principal executive offices)		(Zip Code)

 

Registrant’s telephone number, including area code: (780) 409-8144

 

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)
☐	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))

 

 

 

ITEM 5.07

Submission of Matters to a Vote of Security Holders.

 

On September 29, 2015, the Board of Directors of Deep Well Oil & Gas, Inc. (the “Company”) held its Annual General Meeting of Shareholders (the “Meeting”) in Edmonton, Alberta, Canada, at which two proposals were presented to the Company’s shareholders for consideration. As fixed by the Board of Directors of the Company, only shareholders of record at the close of business on August 7, 2015 (the “Record Date”), were entitled to notice of, and to vote at, this Meeting. The Company had 229,374,605 shares of common stock issued and outstanding, as of the Record Date. The following two proposals were: 1.) to elect eight directors to serve as the Company’s Board of Directors until the next Annual General Meeting of Shareholders; and 2.) To ratify the appointment of Sadler, Gibb & Associates, LLC to serve as the Company’s independent registered public accounting firm for the fiscal year ending September 30, 2015.

 

The number of shares of common stock of the Company represented by registered shareholders or their duly appointed proxies present in person, and present at the Meeting represented by proxy, was 174,980,186 shares of common stock of the Company representing approximately 76.3% of the total shares eligible to vote. The Company’s appointed inspectors of elections have certified the following voting results.

 

That at such Meeting all eight Directors were re-elected, and that the result of such vote taken for the election of eight Directors of the Company was as follows:

 

Director Nominees	Votes For	Votes Withheld
Mr. Said Arrata	162,328,178	64,558
Mr. Satya Brata Das	162,080,012	312,724
Mr. Pascal Nodé-Langlois	162,083,012	309,724
Mr. Colin P. Outtrim	162,083,012	309,724
Mr. David Roff	162,083,012	309,724
Dr. Horst A. Schmid	162,328,272	64,464
Mr. Curtis James Sparrow	162,083,312	309,424
Mr. Malik Youyou	162,078,491	314,245

 

That at such Meeting the appointment of Sadler, Gibb & Associates, LLC as the Company’s independent registered public accounting firm for the fiscal year ending September 30, 2015 was approved by a majority of shareholders and that the result of such vote taken was as follows:

 

Votes For	Votes Against	Votes to Abstain
174,440,672	528,445	11,069

 

Item 5.03

Amendments to Articles of Incorporation or By-Laws.

 

On September 29, 2015, the Board of Directors of Deep Well Oil & Gas, Inc. (the “Company”) adopted amended and restated By-Laws of the Company (the “By-Laws”). The By-Laws became effective immediately upon adoption. The significant amendments reflected in the By-Laws are as follows:

 

1.

the provisions related to the fixing of a record date for the purpose of determining the stockholders entitled to notice of or to vote at a stockholders meeting have been amended to require that such record date must be not more than 60 days and not less than 10 days before the date of the meeting. Prior to the amendments, the record date was required to be not more than 59 days before the date of the meeting; and

 

2.

Clause 2.8 and 2.9 – the provisions related to what constitutes a quorum of stockholders entitled to vote at a stockholder meeting has been amended from a majority shall constitute a quorum to at least one-third of the presence in person or by proxy of the holders of at least one-third in voting power of all outstanding shares of stock entitled to vote at the meeting of stockholders, shall now constitute a quorum at such meeting of stockholders; and

 

3.

the provisions related to submission of stockholder proposals has been corrected for when advance notice of stockholder proposals and director nominations for consideration at the annual meeting of stockholders are to be submitted to the Company; and

 

The above is qualified in its entirety by reference to the full text of the By-Laws of the Company, as amended and restated effective September 29, 2015, attached as exhibit 3.1 to this current report on Form 8-K and filed herewith.

 

 

ITEM 7.01

Regulation FD.

 

The presentation slides that the Company presented at its Annual General Meeting of Shareholders on September 29, 2015 are filed herewith. The Company is furnishing this information in this current report on Form 8-K and in Exhibit 99.1 to comply with Regulation FD.

 

In accordance with General Instruction B.2 of Form 8-K, the information set forth in this Item 7.01, including Exhibit 99.1, is furnished pursuant to Item 7.01 and shall not be deemed "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to the liabilities under that section, nor shall such information be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended (the "Securities Act"), or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing. The information set forth in this Item 7.01 shall not be deemed an admission as to the materiality of any information in this current report on Form 8-K that is required to be disclosed solely to satisfy the requirements of Regulation FD.

 

Item 9.01

Financial Statements and Exhibits.

 

(a) Financial Statements

 

Not Applicable.

 

(d) Exhibits to subject matter reported on this Form 8-K

 

Exhibit No.		Description
3.1		Amended and Restated By-laws effective September 29, 2015 of Deep Well Oil & Gas, Inc., filed herewith.
99.1		Annual General Meeting of Shareholders presentation slides, filed herewith.

 

 

SIGNATURE

 

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 hereto duly authorized.

 

	DEEP WELL OIL & GAS, INC.
Date: October 5, 2015	By:	/s/ Horst A. Schmid
		Dr. Horst A. Schmid
		Chairman and CEO

 

 

4

Exhibit 3.1

  

AMENDED AND RESTATED
BY-LAWS
of
DEEP WELL OIL AND GAS, INC.
(A Nevada Corporation)

 

ARTICLE 1
DEFINITIONS

 

As used in these By-laws, unless the context otherwise requires, the term:

 

1.1.     “Assistant Secretary” means an Assistant Secretary of the Corporation.

 

1.2.     “Assistant Treasurer” means an Assistant Treasurer of the Corporation.

 

1.3.     “Board” means the Board of Directors of the Corporation.

 

1.4.     “By-laws” means these Amended and Restated By-Laws of the Corporation, as further amended from time to time.

 

1.5.     “Certificate of Incorporation” means the Certificate of Amended and Restated Articles of Incorporation of the Corporation, as further amended, supplemented or restated from time to time.

 

1.6.     “Chairman” means the Chairman of the Board of Directors of the Corporation.

 

1.7.   “Corporation” means Deep Well Oil and Gas, Inc., a Nevada corporation.

 

1.8.     “Directors” means directors of the Corporation.

 

1.9.     “Entire Board” means all then authorized directors of the Corporation.

 

1.10.    “Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute thereto.

 

1.11.    “General Corporation Law” means Chapter 78 of the Nevada Revised Statutes, as amended from time to time.

 

1.12.   “Office of the Corporation” means the executive office of the Corporation.

 

 

1.13.    “President” means the President of the Corporation.

 
1.14.    “Secretary” means the Secretary of the Corporation.

 

1.15.    “Securities Act” means the Securities Act of 1933, as amended, or any successor statute thereto.

 

1.16.    “Stockholders” means stockholders of the Corporation.

 

1.17.    “Treasurer” means the Treasurer of the Corporation.

 

1.18.    “Vice President” means a Vice President of the Corporation.

 

ARTICLE 2 

STOCKHOLDERS

 

2.1       Place of Meetings. Every meeting of Stockholders may be held at such place, within or without the State of Nevada, as may be designated by resolution of the Board from time to time. The Board may, in its sole discretion, determine that the meeting of Stockholders shall not be held at any place, but may instead be held solely by means of remote communication or in writing if in accordance with Nevada law.

 

2.2       General Meeting. A meeting of Stockholders shall be held approximately annually for the election of Directors (the “General Meeting”) at such date and time as may be designated by resolution of the Board from time to time. Any other business may be transacted at the General Meeting.

 

2.3       Special Meetings. Special meetings of Stockholders may be called only by:

 

(a) the Chairman,

 

(b) the President or

 

(c) a majority of the members of the Board and may not be called by any other person or persons. Business transacted at any special meeting of Stockholders shall be limited to the purpose stated in the notice.

 

2.4       Fixing Record Date. For the purpose of:

 

(a) determining the Stockholders entitled

 

(i)

to notice of or to vote at any meeting of Stockholders or any adjournment thereof or

 

 

(ii)

to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock; or

 

(b)

any other lawful action,

 

the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date was adopted by the Board and which record date shall not be

 

(c)

in the case of clause (a)(i) above, more than 60 days nor less than 10 days before the date of such meeting and

 

(d)

in the case of clause (a)(ii) or (b) above, more than 60 days prior to such action.

 

If no such record date is fixed:

 

(e)

the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be the close of business on the day next preceding the day on which notice is given, or, if notice is waived, the close of business on the day next preceding the day on which the meeting is held; and

 

(f)

the record date for determining Stockholders for any purpose other than those specified in Section 2.4(e) hereof shall be at the close of business on the day on which the Board adopts the resolution relating thereto.

 

When a determination of Stockholders of record entitled to notice of or to vote at any meeting of Stockholders has been made as provided in this Section 2.4, such determination shall apply to any adjournment thereof unless the Board fixes a new record date for the adjourned meeting.

 

2.5       Notice of Meetings of Stockholders. Whenever under the provisions of applicable law, the Certificate of Incorporation or these By-laws, Stockholders are required or permitted to take any action at a meeting, notice shall be given stating the place, if any, date and hour of the meeting, the means of remote communication, if any, by which Stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any meeting shall be given, not less than 10 nor more than 60 days before the date of the meeting, to each Stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the Canadian or United States mail, with postage prepaid, directed to the Stockholder at his or her address as it appears on the records of the Corporation. An affidavit of the Secretary or an Assistant Secretary or of the transfer agent of the Corporation that the notice required by this Section 2.5 has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. Any meeting of Stockholders, General or special, may adjourn from time to time to reconvene at the same or some other place. When a meeting is adjourned to another time or place, 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, and at the adjourned meeting any business may be transacted that might have been transacted at the meeting as originally called. If, however, the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each Stockholder of record entitled to vote at the meeting.

 

 

2.6       Waivers of Notice. Waiver by a Stockholder in writing of a notice required to be given to such Stockholder shall constitute a waiver of notice of the meeting, whether executed and/or delivered before or after such meeting. Attendance by a Stockholder, in person or by proxy, at a meeting shall constitute a waiver of notice of such meeting except when the Stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting has not been lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any General or special meeting of the Stockholders need be specified in any waiver of notice.

 

2.7       List of Stockholders. The Secretary shall prepare and make, or cause to be prepared and made, at least 10 days before every meeting of Stockholders, a complete list of the Stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each Stockholder and the number of shares registered in the name of each Stockholder. Such list shall be open to the examination of any Stockholder, the Stockholder’s agent, or attorney, at the Stockholder’s expense, for any purpose germane to the meeting, for a period of at least 10 days prior to the meeting, during ordinary business hours at the principal place of business of the Corporation. A Stockholder may only acquire such copies of such list as and to the extent required by applicable law. If the meeting is to be held at a place, the list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any Stockholder who is present. If the meeting is held solely by means of remote communication, the list shall also be open for examination as provided by applicable law. Upon the willful neglect or refusal of the Directors to produce such a list at any meeting for the election of Directors, they shall be ineligible for election to any office at such meeting. Except as provided by applicable law, the Corporation’s stock ledger shall be the only evidence as to who are the Stockholders entitled to examine the Corporation’s stock ledger, the list of Stockholders or the books of the Corporation, or to vote in person or by proxy at any meeting of Stockholders.

 

 

2.8       Quorum of Stockholders; Adjournment. At each meeting of Stockholders, the presence in person or by proxy of the holders of at least one-third in voting power of all outstanding shares of stock entitled to vote at the meeting of Stockholders, shall constitute a quorum for the transaction of any business at such meeting, except that, where a separate vote by a class or series or classes or series is required, a quorum shall consist of no less than one-third in voting power of the shares of such class or series or classes or series. Notwithstanding the foregoing, if at least one-third in interest of the Corporation’s stockholders is not present at a meeting duly called and noticed, and such meeting is adjourned to another time, place or both by the Stockholders present at such meeting, as further set forth below, so long as notice (including the time and place) of the adjourned meeting is provided in accordance with Section 2.5 hereof, the quorum for such adjourned meeting shall be 25% of the voting power of the Corporation’s stockholders (including 25% of the voting power of any class or series if the separate vote by such class or series is required on a matter to be brought before the meeting). When a quorum is present to organize a meeting of Stockholders and for purposes of voting on any matter, the quorum for such meeting or matter is not broken by the subsequent withdrawal of any Stockholders. In the absence of a quorum, the holders of a majority in voting power of the shares of stock present in person or represented by proxy at any meeting of Stockholders, including an adjourned meeting, whether or not a quorum is present, may adjourn such meeting to another time and place. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

2.9       Voting; Proxies. Every Stockholder entitled to vote at any meeting of Stockholders shall be entitled to one vote for each share of stock held by such Stockholder which has voting power upon the matter in question. At any meeting of Stockholders, all matters, except as otherwise provided by Sections 3.3, 3.6 and 7.6 of these By-laws, any provision of the Certificate of Incorporation or these By-laws subsequently adopted requiring a different proportion, the rules and regulations of any stock exchange applicable to the Corporation, applicable law or pursuant to any rules or regulations applicable to the Corporation or its securities, shall be decided by the affirmative vote of one-third in voting power of shares of stock present in person or represented by proxy and entitled to vote thereon. At all meetings of Stockholders for the election of Directors, a plurality of the votes cast shall be sufficient to elect. Each Stockholder entitled to vote at a meeting of Stockholders may authorize another person or persons to act for such Stockholder by proxy but no such proxy shall be voted or acted upon after six months from its date, unless the proxy provides for a longer period, not to exceed seven years. A proxy shall be irrevocable if it states that it is irrevocable and if, and only so long as, it is coupled with an interest sufficient in law to support an irrevocable power. A Stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary a revocation of the proxy or by delivering a new proxy bearing a later date.

 

 

2.10     Voting Procedures and Inspectors of Election at Meetings of Stockholders. The Board, in advance of any meeting of Stockholders, may appoint one or more inspectors, who may be employees of the Corporation, to act at the meeting and make a written report thereof. The Board may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting, the person presiding at the meeting may appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall:

 

(a)

ascertain the number of shares outstanding and the voting power of each,

 

(b)

determine the shares represented at the meeting and the validity of proxies and ballots,

 

(c)

count all votes and ballots,

 

(d)

determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and

 

(e)

certify their determination of the number of shares represented at the meeting and their count of all votes and ballots.

 

The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of their duties. Unless otherwise provided by the Board, the date and time of the opening and the closing of the polls for each matter upon which the Stockholders will vote at a meeting shall be determined by the person presiding at the meeting and shall be announced at the meeting. No ballot, proxies or votes, or any revocation thereof or change thereto, shall be accepted by the inspectors after the closing of the polls unless any court properly applying jurisdiction over the Corporation upon application by a Stockholder shall determine otherwise. In determining the validity and counting of proxies and ballots cast at any meeting of Stockholders, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for office at an election may serve as an inspector at such election.

 

2.11     Conduct of Meetings; Organization; Director Nominations and Other Stockholder Proposals.

 

The Board may adopt by resolution such rules and regulations for the conduct of the meeting of Stockholders as it shall deem appropriate.

 

 

(a)

At each meeting of Stockholders, the President, or in the absence of the President, the Chairman, or if there is no Chairman or if there be one and the Chairman is absent, a Vice President, and in case more than one Vice President shall be present, that Vice President designated by the Board (or in the absence of any such designation, the most senior Vice President, based on age, present), shall preside over the meeting. Except to the extent inconsistent with such rules and regulations as are adopted by the Board, the person presiding over any meeting of Stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the presiding officer of the meeting, may include, without limitation, the following:

 

(i)

the establishment of an agenda or order of business for the meeting;

 

(ii)

rules and procedures for maintaining order at the meeting and the safety of those present;

 

(iii)

limitations on attendance at or participation in the meeting applicable to Stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the person presiding over the meeting shall determine;

 

(iv)

restrictions on entry to the meeting after the time fixed for the commencement thereof; and

 

(v)

limitations on the time allotted to questions or comments by participants.

 

The presiding officer at any meeting of Stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding officer should so determine, such person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board or the person presiding over the meeting, meetings of Stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. The Secretary, or in his or her absence, one of the Assistant Secretaries, shall act as secretary of the meeting. In case none of the officers above designated to act as the person presiding over the meeting or as secretary of the meeting, respectively, shall be present, a person presiding over the meeting or a secretary of the meeting, as the case may be, shall be designated by the Board, and in case the Board has not so acted, in the case of the designation of a person to act as secretary of the meeting, the person to act as secretary of the meeting shall be designated by the person presiding over the meeting.

 

 

(b)

Only persons who are nominated in accordance with the following procedures shall be eligible for election as Directors. Nominations of persons for election to the Board may be made at a General Meeting or special meeting of Stockholders only:

 

(i)

by or at the direction of the Board,

 

(ii)

by any nominating committee designated by the Board or

 

(iii)

by any Stockholder of the Corporation who was a Stockholder of record of the Corporation at the time the notice provided for in this Section 2.11 is delivered to the Secretary. Such nominating Stockholder must be entitled to vote for the election of Directors at the meeting and must comply with the applicable provisions of Section 2.11(d) hereof.

 

Persons nominated in accordance with (iii) above are referred to herein as “Stockholder nominees”.

 

(c)

At any General Meeting of Stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before a General Meeting of Stockholders,

 

(i)

business must be specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board,

 

(ii)

otherwise properly brought before the meeting by or at the direction of the Board or

 

(iii)

otherwise properly brought before the meeting by a Stockholder who was a Stockholder of record of the Corporation at the time the notice provided for in this Section 2.11 is delivered to the Secretary. Such proposing Stockholder must be entitled to vote at the meeting and must comply with the applicable provisions of Section 2.11(d) hereof.

 

Business brought before the meeting in accordance with (iii) above is referred to as “Stockholder business”.

 

(d)

At any General or special meeting of Stockholders;

 

(i)

all nominations of Stockholder nominees must be made by timely written notice given by or on behalf of a Stockholder of record of the Corporation (the “Notice of Nomination”) and

 

 

(ii)

all proposals of Stockholder business must be made by timely written notice given by or on behalf of a Stockholder of record of the Corporation (the “Notice of Business”).

 

To be timely, the Notice of Nomination or the Notice of Business, as the case may be, must be delivered personally to, or mailed to, and received at the Office of the Corporation, addressed to the attention of the Secretary,

 

(iii)

in the case of the nomination of a person for election to the Board, or business to be conducted, at a General Meeting of Stockholders, not less than ninety (90) days nor more than one hundred and twenty (120) days prior to the one-year anniversary of the mailing date of the prior year’s proxy statement, or

 

(iv)

in the case of the nomination of a person for election to the Board at a special meeting of Stockholders, not more than one hundred and twenty (120) days prior to and not less than the later of:

 

a.

ninety (90) days prior to such special meeting or

 

b.

the tenth day following the day on which the notice of such special meeting was made by mail or Public Disclosure; provided, however, that in the event that either:

 

i.

the General Meeting of Stockholders is advanced by more than thirty (30) days, or delayed by more than seventy (70) days, from the first anniversary of the prior year’s General Meeting of Stockholders,

 

ii.

no General Meeting was held during the prior year or,

 

(v)

in the case of the Corporation’s first General Meeting of Stockholders as a corporation with a class of equity security registered under the Securities Act, notice by the Stockholder to be timely must be received;

  

a.

no earlier than one hundred and twenty (120) days prior to such General Meeting and

 

 

b.

no later than the later of ninety (90) days prior to such General Meeting or ten (10) days following the day the notice of such General Meeting was made by mail or Public Disclosure, regardless of any postponement, deferral or adjournment of the meeting to a later date.

 

In no event shall the Public Disclosure of an adjournment or postponement of an General or special meeting commence a new time period (or extend any time period) for the giving of the Notice of Nomination or Notice of Business, as applicable.

 

Notwithstanding anything in the immediately preceding paragraph to the contrary, in the event that the number of directors to be elected to the Board at a General Meeting is increased and there is no public announcement by the Corporation naming the nominees for the additional directorships at least one hundred (100) days prior to the first anniversary of the preceding year’s General Meeting, a Notice of Nomination shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered at the Office of the Corporation, addressed to the attention of the Secretary, not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the Corporation.

 

The Notice of Nomination shall set forth;

 

(i)

the name and record address of the Stockholder and/or beneficial owner proposing to make nominations, as they appear on the Corporation’s books,

 

(ii)

the class and number of shares of stock held of record and beneficially by such Stockholder and/or such beneficial owner,

 

(iii)

a representation that the Stockholder is a holder of record of stock of the Corporation entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to propose such nomination,

 

(iv)

all information regarding each Stockholder nominee that would be required to be set forth in a definitive proxy statement filed with the Securities and Exchange Commission pursuant to Section 14 of the Exchange Act, and the written consent of each such Stockholder nominee to being named in a proxy statement as a nominee and to serve if elected and

 

(v)

all other information that would be required to be filed with the Securities and Exchange Commission if the person proposing such nominations were a participant in a solicitation subject to Section 14 of the Exchange Act.

 

The Corporation may require any Stockholder nominee to furnish such other information as it may reasonably require to determine the eligibility of such Stockholder nominee to serve as a Director of the Corporation. The person presiding over the meeting shall, if the facts warrant, determine and declare to the meeting that any proposed nomination of a Stockholder nominee was not made in accordance with the foregoing procedures and, if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.

 

 

The Notice of Business shall set forth:

 

(i)

the name and record address of the Stockholder and/or beneficial owner proposing such Stockholder business, as they appear on the Corporation’s books,

 

(ii)

the class and number of shares of stock held of record and beneficially by such Stockholder and/or such beneficial owner,

 

(iii)

a representation that the Stockholder is a holder of record of stock of the Corporation entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to propose such business,

 

(iv)

a brief description of the Stockholder business desired to be brought before the General Meeting, the text of the proposal (including the text of any resolutions proposed for consideration and, in the event that such business includes a proposal to amend the By-laws, the language of the proposed amendment, and the reasons for conducting such Stockholder business at the General Meeting,

 

(v)

any material interest of the Stockholder and/or beneficial owner in such Stockholder business and

 

(vi)

at any time after a Registration Statement relating to any series of the Corporation’s securities has become effective under the Securities Act, all other information that would be required to be filed with the Securities and Exchange Commission if the person proposing such Stockholder business were a participant in a solicitation subject to Section 14 of the Exchange Act.

 

Notwithstanding anything in these By-laws to the contrary, no business shall be conducted at the General Meeting of Stockholders except in accordance with the procedures set forth in this Section 2.11(d), provided, however, that nothing in this Section 2.11(d) shall be deemed to preclude discussion by any Stockholder of any business properly brought before the General Meeting in accordance with said procedure. Nevertheless, it is understood that Stockholder business may be excluded if the exclusion of such Stockholder business is permitted by the applicable law. Only such business shall be conducted at a special meeting of Stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. The person presiding over the meeting shall, if the facts warrant, determine and declare to the meeting, that business was not properly brought before the meeting in accordance with the foregoing procedures and, if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.

 

 

Notwithstanding the foregoing provisions of this Section 2.11, if the Stockholder (or a qualified representative of the Stockholder) does not appear at the General or special meeting of Stockholders to present the Stockholder nomination or the Stockholder business, as applicable, such nomination shall be disregarded and such business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation.

 

For purposes of this Section 2.11, “Public Disclosure” shall be deemed to be first made when disclosure of such date of the General or special meeting of Stockholders, as the case may be, is first made by the Corporation in an announcement, which may include a press release, to the press or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.

 

Notwithstanding the foregoing, after the date that a Registration Statement relating to a series of the Corporation’s securities has become effective under the Securities Act, a Stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.11.

 

2.12    Order of Business. The order of business at all meetings of Stockholders shall be as determined by the person presiding over the meeting.

 

ARTICLE 3
DIRECTORS

 

3.1      General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board. The Board may adopt such rules and regulations, not inconsistent with the Certificate of Incorporation or these Bylaws or applicable law, as it may deem proper for the conduct of its meetings and the management of the Corporation.

 

3.2      Number; Qualification; Term of Office. The total number of Directors constituting the Entire Board shall be not less than 3 nor more than 15, with the then-authorized number of Directors being fixed from time to time by the Board. Directors need not be Stockholders. Each Director shall hold office until a successor is duly elected and qualified or until the Director’s earlier death, resignation, disqualification or removal. The members of the Board shall serve for one year and until their successors have been elected.

 

3.3       Election. Directors shall be elected by a plurality of the votes cast at a meeting of Stockholders by the holders of shares present in person or represented by proxy at the meeting and entitled to vote in the election.

 

 

3.4       Newly Created Directorships and Vacancies. Any newly created Directorships resulting from any increase in the authorized number of Directors or any vacancies in the Board resulting from death, resignation, retirement, disqualification, removal from office or other cause may be filled by a majority vote of the remaining Directors then in office although less than a quorum, or by a sole remaining Director, and Directors so chosen shall hold office until the expiration of the term of office of the Director whom he or she has replaced or until his or her successor is duly elected and qualified. No decrease in the number of Directors constituting the Board shall shorten the term of any incumbent Director. When any Director shall give notice of resignation effective at a future date, the Board may fill such vacancy to take effect when such resignation shall become effective in accordance with the General Corporation Law.

 

3.5       Resignation. Any Director may resign at any time upon notice given in writing or by electronic transmission to the Corporation. Such resignation shall take effect at the time therein specified, and, unless otherwise specified in such resignation, the acceptance of such resignation shall not be necessary to make it effective.

 

3.6       Removal. Any Director, or the Entire Board, may be removed from office at any time, but only for cause and only by the affirmative vote of at least 662/3% of the total voting power of the outstanding shares of stock of the Corporation entitled to vote generally in the election of Directors, voting together as a single class.

 

3.7       Compensation. Each Director, in consideration of his or her service as such, shall be entitled to receive from the Corporation such amount per annum or such fees for attendance at Directors’ meetings, or both, as the Board may from time to time determine, together with reimbursement for the reasonable out-of-pocket expenses, if any, incurred by such Director in connection with the performance of his or her duties. Each Director who shall serve as a member of any committee of Directors, including as chairperson of such committee of Directors, in consideration of serving as such shall be entitled to such additional amount per annum or such fees for attendance at committee meetings, or both, as the Board may from time to time determine, together with reimbursement for the reasonable out-of-pocket expenses, if any, incurred by such Director in the performance of his or her duties. Nothing contained in this Section 3.7 shall preclude any Director from serving the Corporation or its subsidiaries in any other capacity and receiving proper compensation therefore.

 

3.8       Regular Meetings. Regular meetings of the Board may be held without notice at such times and at such places within or without the State of Nevada as shall from time to time be determined by the Board.

 

3.9       Special Meetings. Special meetings of the Board may be held at any time or place, within or without the State of Nevada, whenever called by the Chairman, the President or by any two or more Directors then serving as Directors on at least seventy-two hours notice to each Director given by one of the means specified in Section 3.12 hereof other than by mail, or on at least seven days’ notice if given by physical mail. Special meetings shall be called by the Chairman, President or Secretary in like manner and on like notice on the written request of any two or more of the Directors. Notwithstanding the foregoing, if the Chairman or the President and at least one Director, have determined that an emergency exists that requires a meeting to be held on an expedited basis, then notice shall be given by the means specified in Section 3.12 hereof, other than physical mail, and the notice period shall be twenty-four hours.

 

 

3.10    Telephone Meetings. Directors or members of any committee designated by the Board may participate in a meeting of the Board or of such committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.10 shall constitute presence in person at such meeting.

 

3.11    Adjourned Meetings. A majority of the Directors present at any meeting of the Board, including an adjourned meeting, whether or not a quorum is present, may adjourn such meeting to another time and place. At least 72 hours’ notice of any adjourned meeting of the Board shall be given to each Director whether or not present at the time of the adjournment, if such notice shall be given by one of the means specified in Section 3.12 hereof other than by mail, or at least seven days’ notice if by mail. Any business may be transacted at an adjourned meeting that might have been transacted at the meeting as originally called.

 

3.12     Notice Procedure. Subject to Sections 3.9 and 3.10 hereof, whenever notice is required to be given by the Corporation to any Director, such notice shall be deemed given effectively if given in person, by telephone, by mail addressed to such Director at such Director’s address, electronic or physical, as it appears on the records of the Corporation, with postage thereon prepaid, or by telegram, telex, telecopy or other means of electronic transmission.

 

3.13     Waiver of Notice. Waiver by a Director in writing of notice of a Director’s meeting shall constitute a waiver of notice of the meeting, whether executed and/or delivered before or after such meeting. Attendance by a Director at a meeting shall constitute a waiver of notice of such meeting except when the Director attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting has not been lawfully called or convened, if such Director then promptly withdraws from the meeting. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Directors or a committee of Directors need be specified in any written waiver of notice.

 

3.14     Organization. At each meeting of the Board, the Chairman, or in the absence of the Chairman, the President, or in the absence of the President, a chairman chosen by a majority of the Directors present, shall preside. The Secretary shall act as secretary at each meeting of the Board. In case the Secretary shall be absent from any meeting of the Board, an Assistant Secretary shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the Secretary and all Assistant Secretaries, the person presiding at the meeting may appoint any person to act as secretary of the meeting.

 

 

3.15     Quorum of Directors. The presence in person of a majority of the entire Board shall be necessary and sufficient to constitute a quorum for the transaction of business at any meeting of the Board.

 

3.16     Action by Majority Vote. Except as otherwise expressly required by applicable law, the act of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board.

 

3.17     Action Without Meeting. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if the majority of Directors or members of such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed and re-affirmed, if necessary, with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

 

ARTICLE 4

COMMITTEES OF THE BOARD

 

The Board may, by resolution, designate one or more committees, each committee to consist of one or more of the Directors of the Corporation. The Board may adopt charters for one or more of such committees. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee. If a member of a committee shall be absent from any meeting, or disqualified from voting thereat, the remaining member or members present at the meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may, by a unanimous vote, appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent permitted by applicable law and to the extent provided in the resolution of the Board designating such committee or the charter for such committee, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation. The Board may remove any Director from any committee at any time, with or without cause. Unless otherwise specified in the resolution of the Board designating a committee or the charter for such committee, at all meetings of such committee, a majority of the then authorized members of the committee shall constitute a quorum for the transaction of business, and the vote of a majority of the members of the committee present at any meeting at which there is a quorum shall be the act of the committee. Each committee shall keep regular minutes of its meetings. If the Board provides, each committee designated by the Board may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board conducts its business pursuant to Article 3 of these By-laws.

 

 

ARTICLE 5
OFFICERS

 

5.1      Positions. The officers of the Corporation shall be a President, a Secretary, a Treasurer and such other officers as the Board may elect, including a Chairman, one or more Vice Presidents and one or more Assistant Secretaries and Assistant Treasurers, who shall exercise such powers and perform such duties as shall be determined from time to time by resolution of the Board. The Board may elect one or more Vice Presidents as Executive Vice Presidents and may use descriptive words or phrases to designate the standing, seniority or areas of special competence of the Vice Presidents elected or appointed by it. Any number of offices may be held by the same person.

 

5.2       Election. The officers of the Corporation shall be elected by the Board at its General meeting or at such other time or times as the Board shall determine.

 

5.3       Term of Office. Each officer of the Corporation shall hold office for the term for which he or she is elected and until such officer’s successor is elected and qualifies or until such officer’s earlier death, resignation or removal. Any officer may resign at any time upon written notice to the Corporation. Such resignation shall take effect at the date of receipt of such notice or at such later time as is therein specified, and, unless otherwise specified, the acceptance of such resignation shall not be necessary to make it effective. The resignation of an officer shall be without prejudice to the contract rights of the Corporation, if any. Any officer may be removed at any time, with or without cause, by the Board. Any vacancy occurring in any office of the Corporation may be filled by the Board. The removal of an officer, with or without cause, shall be without prejudice to the officer’s contract rights, if any. The election or appointment of an officer shall not of itself create contract rights.

 

5.4       Fidelity Bonds. The Corporation may secure the fidelity of any or all of its officers or agents by bond or otherwise.

 

5.5       Chairman. The Chairman, if one shall have been appointed, shall preside at all meetings of the Board and shall exercise such powers and perform such other duties as shall be determined from time to time by resolution of the Board.

 

5.6       President. The President shall have general supervision over the business of the Corporation and shall be its chief executive officer, subject, however, to the control of the Board and of any duly authorized committee of the Board. The President shall preside at all meetings of the Stockholders and at all meetings of the Board at which the Chairman (if there be one) is not present. The President may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts and other instruments, except in cases in which the signing and execution thereof shall be expressly delegated by resolution of the Board or by these By-laws to some other officer or agent of the Corporation or shall be required by applicable law otherwise to be signed or executed and, in general, the President shall perform all duties incident to the office of president of a corporation and such other duties as may from time to time be assigned to the President by resolution of the Board.

 

 

5.7       Vice Presidents. At the request of the President, or, in the President’s absence, at the request of the Board, the Vice Presidents shall (in such order as may be designated by the Board, or, in the absence of any such designation, in order of seniority based on title) perform all of the duties of the President and, in so performing, shall have all the powers of, and be subject to all restrictions upon, the President. Any Vice President may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts and other instruments, except in cases in which the signing and execution thereof shall be expressly delegated by resolution of the Board or by these Bylaws to some other officer or agent of the Corporation, or shall be required by applicable law otherwise to be signed or executed, and each Vice President shall perform such other duties as from time to time may be assigned to such Vice President by resolution of the Board or by the President.

 

5.8       Secretary. The Secretary shall attend all meetings of the Board and of the Stockholders and shall record all the proceedings of the meetings of the Board and of the Stockholders in a book to be kept for that purpose, and shall perform like duties for committees of the Board, when required. The Secretary shall give, or cause to be given, notice of all special meetings of the Board and of the Stockholders and shall perform such other duties as may be prescribed by the Board or by the President, under whose supervision the Secretary shall be. The Secretary or an Assistant Secretary may also attest all instruments signed by the President or any Vice President. The Secretary shall have charge of all the books, records and papers of the Corporation relating to its organization and management, shall see that the reports, statements and other documents required by applicable law are properly kept and filed and, in general, shall perform all duties incident to the office of Secretary of a corporation and such other duties as may from time to time be assigned to the Secretary by resolution of the Board or by the President.

 

5.9       Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds, securities and notes of the Corporation; receive and give receipts for moneys due and payable to the Corporation from any sources whatsoever; deposit all such moneys and valuable effects in the name and to the credit of the Corporation in such depositaries as may be designated by the Board; against proper vouchers, cause such funds to be disbursed by checks or drafts on the authorized depositaries of the Corporation signed in such manner as shall be determined by the Board and be responsible for the accuracy of the amounts of all moneys so disbursed; regularly enter or cause to be entered in books or other records maintained for the purpose full and adequate account of all moneys received or paid for the account of the Corporation; have the right to require from time to time reports or statements giving such information as the Treasurer may desire with respect to any and all financial transactions of the Corporation from the officers or agents transacting the same; render to the President or the Board, whenever the President or the Board shall require the Treasurer so to do, an account of the financial condition of the Corporation and of all financial transactions of the Corporation; disburse the funds of the Corporation as ordered by the Board; and, in general, perform all duties incident to the office of Treasurer of a corporation and such other duties as may from time to time be assigned to the Treasurer by resolution of the Board or by the President.

 

 

5.10     Assistant Secretaries and Assistant Treasurers. Assistant Secretaries and Assistant Treasurers shall perform such duties as shall be assigned to them by the Secretary or by the Treasurer, respectively, or by resolution of the Board or by the President.

 

ARTICLE 6

INDEMNIFICATION

 

6.1       Right to Indemnification. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that he or she, or a person for whom he or she is legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity (an “Other Entity”), including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the Corporation shall be required to indemnify a Covered Person in connection with a Proceeding (or part thereof) commenced by such Covered Person only if the commencement of such Proceeding (or part thereof) by the Covered Person was authorized by the Board.

 

6.2       Prepayment of Expenses. The Corporation shall pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any Proceeding in advance of its final disposition, provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article 6 or otherwise.

 

6.3       Claims. If a claim for indemnification or advancement of expenses under this Article 6 is not paid in full within 30 days after a written claim therefor by the Covered Person has been received by the Corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

 

6.4      Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article 6 shall not be exclusive of any other rights that such Covered Person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, these By-laws, agreement, vote of stockholders or disinterested directors or otherwise.

 

6.5       Other Sources. The Corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of an Other Entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such Other Entity.

 

6.6       Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article 6 shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

6.7       Other Indemnification and Prepayment of Expenses. This Article 6 shall not limit the right of the Corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

ARTICLE 7

GENERAL PROVISIONS

 

7.1       Certificates Representing Shares. The shares of stock of the Corporation shall be represented by certificates, or shall be uncertificated shares that may be evidenced by a book-entry system maintained by the registrar of such stock, or a combination of both. Every holder of stock shall be entitled to have a certificate, signed by or in the name of the Corporation by the Chairman, if any, or the President or a Vice President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer, certifying the number of shares owned by such holder of stock in the Corporation. Any or all of the signatures upon a certificate may be facsimiles. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon any certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.

 

7.2       Transfer and Registry Agents. The Corporation may from time to time maintain one or more transfer offices or agents and registry offices or agents at such place or places as may be determined from time to time by the Board.

 

 

7.3       Lost, Stolen or Destroyed Certificates. The Corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may, in the Corporation’s sole and unfettered discretion, require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

7.4      Form of Records. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records pursuant to applicable law.

 

7.5       Fiscal Year. The fiscal year of the Corporation shall be determined by resolution of the Board.

 

7.6      Amendments. These By-laws may be altered, amended or repealed and new By-laws may be adopted either;

 

(a)

by a majority of the Board, or

 

(b)

by the affirmative vote of at least a majority of the voting power of the shares of then outstanding voting stock of the Corporation, voting together as a single class.

 

ARTICLE 8

EFFECTIVE DATE

 

8.1       The effective date of these amended and restated Bylaws shall be the 29^th day of September, 2015.

 

 

 

Deep Well Oil & Gas, Inc. Amended Bylaws approved September 29, 2015

Page 20 of 20

 

 

 

Exhibit 99.1

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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