UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14C INFORMATION
Information Statement Pursuant to Section 14(c) of the
Securities Exchange Act of 1934
Filed by the Registrant |
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by a Party other than the Registrant |
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Preliminary Information
Statement |
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Confidential, For Use of the
Commission Only (as Permitted by Rule 14c-5(d)(2)) |
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Definitive Information
Statement |
IMPERALIS HOLDINGS CORP.
(Name of Registrant as Specified in its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the
Registrant)
Payment of Filing Fee (Check the appropriate
box): |
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Fee computed on table below per Exchange Act Rules 14c-5(g) and
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securities to which transaction applies: |
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Aggregate number of
securities to which transaction applies: |
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Per unit price or other
underlying value of transaction computed pursuant to Exchange Act
Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was determined): |
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Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for which the
offsetting fee was paid previously. Identify the previous filing by
registration statement number, or the Form or Schedule and the date
of its filing. |
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IMPERALIS HOLDING CORP.
1421 McCarthy Blvd.
Milpitas, CA 95035
Telephone: (949) 444-5464
NOTICE OF SHAREHOLDER ACTION BY WRITTEN CONSENT
TO ALL SHAREHOLDERS OF IMPERALIS HOLDING CORP.
September 26, 2022
Dear Shareholders of Imperalis Holding Corp.:
This Notice and the accompanying
Information Statement are first being mailed on or about September
27, 2022, to the holders of record of the outstanding common stock
and preferred stock of Imperalis Holding Corp., a Nevada
corporation (the “Company” “we,” “us,”
or “our”) as of September 12,
2022 (the “Record Date”). We are furnishing this Information
Statement in connection with actions taken by our majority
shareholder, which has the authority to vote a majority of the
outstanding shares of our common stock, par value $0.001 per share
(“Common Stock”).
By written consent dated September 12, 2022, shareholders holding
89.9% of the voting equity of the Company approved and ratified the
following corporate actions (collectively, the
“Actions”):
|
1. |
The adoption of the Amended and Restated Articles of
Incorporation, as amended (the “Amended Articles”) to, among
other items, increase our authorized shares of common stock
from 200,000,000 to 750,000,000 (the “Share
Increase”). |
|
2. |
The adoption of the Amended Articles to, among other items,
change the name of the Company from “Imperalis Holding Corp.” to
“TurnOnGreen, Inc.” (the “Name Change”). |
|
3. |
The adoption of the Amended and Restated Bylaws of the Company
(the “Amended Bylaws”). |
|
4. |
Approval of the compensation of our named executive officers on
a non-binding advisory basis during the fiscal year ended December
31, 2021. |
|
5. |
Approval of a frequency of “Three Years” for future advisory
votes on executive compensation. |
Pursuant to Rule 14c-2 under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), the proposals will not be
effective until at least 20 calendar days after the mailing of the
Information Statement to our shareholders. Therefore, the
Information Statement is being sent to you for informational
purposes only.
WE ARE NOT ASKING YOU FOR A PROXY
AND YOU ARE REQUESTED NOT TO SEND US A PROXY
Pursuant to rules adopted by the Securities and Exchange
Commission, copies of these reports may be obtained from the SEC’s
EDGAR archives at https://sec.report. This is not a notice of a
meeting of shareholders and no shareholders’ meeting will be held
to consider the action described herein. The accompanying
Information Statement is being furnished to you solely for the
purpose of informing shareholders of the action described herein
pursuant to Section 14(c) of the Exchange Act and the regulations
promulgated thereunder, including Regulation 14C.
ACCORDINGLY, WE ARE NOT ASKING YOU FOR A PROXY, AND YOU ARE
REQUESTED NOT TO SEND US A PROXY. NO PROXY CARD HAS BEEN ENCLOSED
WITH THE INFORMATION STATEMENT.
The accompanying Information Statement will serve as written notice
to shareholders of the Company pursuant to Section 78.370 of the
Nevada Revised Statutes.
Dated:
September 26, 2022
|
By |
Order of the Board of Directors |
|
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/s/ Amos Kohn |
|
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Chief Executive Officer |
TABLE OF CONTENTS
Information Concerning the Actions by Written
Consent |
iv |
A NOTE ABOUT FORWARD-LOOKING STATEMENTS |
vi |
ACTION NO. 1 |
AMENDMENT TO THE ARTICLES OF INCORPORATION
TO INCREASE THE AUTHORIZED SHARES OF COMMON STOCK |
1 |
Outstanding Shares and
Purpose of the Amendment |
1 |
Effects of the Increase
in Authorized Common Stock |
1 |
No Appraisal Rights |
1 |
Approval of the Board of
Directors and Majority Shareholder |
1 |
ACTION
NO. 2 |
AMENDMENT TO THE ARTICLES OF INCORPORATION TO CHANGE OUR NAME
FROM IMPERALIS HOLDING CORP. TO TURNONGREEN, INC. |
2 |
Reasons for the
Amendment |
2 |
Effect of the
Amendment |
2 |
No Appraisal Rights |
2 |
Approval of the Board of
Directors and Majority Shareholder |
2 |
ACTION
NO. 3 |
ADOPTION OF THE AMENDED AND RESTATED BYLAWS |
3 |
Reason for the
Amendment |
3 |
No Appraisal Rights |
3 |
Approval of the Board of
Directors and Majority Shareholder |
3 |
ACTION
NO. 4 |
APPROVAL OF EXECUTIVE COMPENSATION A NON-BINDING ADVISORY BASIS
("SAY-ON-PAY") |
4 |
Approval of the Board of
Directors and Majority Shareholder |
4 |
ACTION
NO. 5 |
APPROVAL OF THE FREQUENCY OF HOLDING FUTURE ADVISORY VOTES ON
EXECUTIVE COMPENSATION |
5 |
Approval of the Board of
Directors and Majority Shareholder |
5 |
CERTAIN INFORMATION REGARDING THE COMPANY |
6 |
Voting Securities |
6 |
Security Ownership of
Certain Beneficial Owners and Management |
6 |
DIRECTORS AND EXECUTIVE OFFICERS |
6 |
Election of Directors and
Officers |
7 |
Audit Committee |
8 |
Director
Independence |
8 |
Code of Ethics |
8 |
Family Relationships |
8 |
Legal Proceedings |
8 |
Change of Control
Arrangements |
8 |
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND
DIRECTOR INDEPENDENCE |
9 |
CORPORATE GOVERNANCE |
10 |
Director
Independence |
10 |
Board Committees |
10 |
Board Oversight |
10 |
Director Nominations |
10 |
Shareholder Communication with the
Board |
10 |
EXECUTIVE COMPENSATION |
10 |
Summary Compensation Table |
10 |
Employment Agreements |
11 |
Termination Provisions |
11 |
Outstanding Equity Awards at Fiscal
Year End |
11 |
Director Compensation |
11 |
DESCRIPTION OF SECURITIES |
11 |
Common Stock |
11 |
Voting Rights |
11 |
No Cumulative Voting |
11 |
Rights upon Liquidation, Dissolution
or Winding-Up of the Company |
11 |
Preferred Stock |
12 |
Options |
12 |
Warrants |
12 |
Liability and Indemnity
of Directors and Officers |
12 |
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WHERE YOU CAN FIND MORE INFORMATION |
12 |
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ANNEX A - AMENDED AND RESTATED ARTICLES OF INCORPORATION |
A-1 |
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ANNEX B - AMENDED AND RESTATED BYLAWS |
B-1 |
IMPERALIS HOLDING CORP.
1421 McCarthy Blvd.
Milpitas, CA 95035
Telephone: (949) 444-5464
DEFINITIVE INFORMATION STATEMENT
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY
THIS IS NOT A NOTICE OF A MEETING OF SHAREHOLDERS AND NO SHAREHOLDERS’
MEETING WILL BE HELD TO CONSIDER ANY MATTER DESCRIBED HEREIN. THIS
INFORMATION STATEMENT IS BEING FURNISHED TO YOU SOLELY FOR THE
PURPOSE OF INFORMING YOU OF THE MATTERS DESCRIBED HEREIN.
Information Concerning the Actions by Written Consent
This Information Statement is being furnished to the shareholders
of Imperalis Holding Corp., a Nevada corporation (the
“Company”, “we”, “us” or “our”),
pursuant to Section 14(c) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), and the rules and
regulations promulgated thereunder, for the purpose of informing
our shareholders that, on September 12, 2022, our board of
directors (the “Board”) approved by written consent, and on
September 12, 2022, the shareholders holding a majority of the
voting power of the Company also approved by written consent, the
following corporate actions (collectively, the
“Actions”):
|
1. |
The adoption of the Amended and
Restated Articles of Incorporation, as amended (the “Amended
Articles”) to, among other items, increase our authorized
shares of common stock from 200,000,000 to 750,000,000 (the
“Share Increase”). |
|
2. |
The adoption of the Amended Articles to, among other items,
change the name of the Company from “Imperalis Holding Corp.” to
“TurnOnGreen, Inc.” (the “Name Change”). |
|
3. |
The adoption of the Amended and Restated Bylaws of the Company
(the “Amended Bylaws”). |
|
4. |
Approval of the compensation of our named executive officers on
a non-binding advisory basis during the fiscal year ended December
31, 2021. |
|
5. |
Approval of a frequency of “Three Years” for future advisory
votes on executive compensation. |
Prior Shareholder Approval
Our ability to undertake the Actions without a meeting of our
shareholders is authorized by Section 78.320(2) of the Nevada
Revised Statutes. That section generally provides that a Nevada
corporation may substitute for action on a matter by its
shareholders at a meeting the written consent of the holders of
outstanding shares of capital stock holding at least the minimum
number of votes which would be necessary to authorize or take the
action at a meeting at which all shares entitled to vote on the
matter are present and voted. In accordance with this provision, we
obtained the written consent of the shareholders owning an
aggregate of 288,900,420 shares of our Common Stock (collectively,
the “Majority Shareholder”) to the Actions. As a result of
the action of the Majority Shareholder, we are not soliciting
proxies, and there will be no other shareholder action
required.
Holders of record of the Company's Common Stock are entitled to
notice of the action taken by written consent approving the
Actions.
Under Nevada law and our Articles of Incorporation the affirmative
vote of a majority of the votes entitled to be cast by holders of
all shares of our Common Stock outstanding as of the close of
business on of the Record Date
(defined hereinafter), was required to approve the Actions.
The Amended Articles, attached hereto as Annex
A, will become effective when they have been accepted for
filing by the Secretary of State of the State of Nevada. We expect
the filing will be made promptly following the date that is 20 days
from the date this Information Statement is disseminated to our
shareholders.
Record Date
Our Board of Directors has fixed the
close of business on September 12, 2022 (the “Record Date”),
as the record date for determining our shareholders who are
entitled to receive this Information Statement. Only our
shareholder of record as of the Record Date are entitled to notice
of the information disclosed in this Information Statement. As of
the Record Date, there were 161,704,695 shares of common stock, par value $0.001
(“Common Stock”), and 25,000 shares of Series A Preferred
Stock issued and outstanding. Shareholders as of the Record Date
who did not consent to any of the Actions are not entitled to
dissenters’ rights or appraisal rights in connection with any of
the Actions under the laws of the State of Nevada or under our
bylaws.
Expenses
The cost of preparing and furnishing this Information Statement
will be borne by us. We may request brokerage houses, nominees,
custodians, fiduciaries and other like parties to forward this
Information Statement to the beneficial owners of our Common Stock
held on the Record Date.
Shareholders Sharing an Address
We will deliver, or cause to be delivered, only one copy of this
Information Statement to multiple shareholders sharing an address,
unless we have received contrary instructions from one or more of
the shareholders. We undertake to promptly deliver, or cause to be
promptly delivered, upon written or oral request, a separate copy
of this Information Statement to a shareholder at a shared address
to which a single copy of this Information Statement is delivered.
A shareholder can notify us that the shareholder wishes to receive
a separate copy of this Information Statement by contacting us at
the address set forth above. Conversely, if multiple shareholders
sharing an address receive multiple Information Statements and wish
to receive only one, such shareholders can notify us at the address
set forth above.
A NOTE ABOUT FORWARD-LOOKING STATEMENTS
This Information Statement may contain forward-looking statements
that involve a number of risks and uncertainties. Words such as
“anticipates,” “expects,” “intends,” “goals,” “plans,” “believes,”
“seeks,” “estimates,” “continues,” “may,” “will,” “would,”
“should,” “could,” and variations of such words and similar
expressions are intended to identify such forward-looking
statements. In addition, any statements that refer to projections
of our future financial performance, our anticipated growth and
trends in our businesses, uncertain events or assumptions, and
other characterizations of future events or circumstances are
forward-looking statements. Such statements are based on
management’s expectations as of the date of this filing and involve
many risks and uncertainties that could cause our actual results to
differ materially from those expressed or implied in our
forward-looking statements. Such risks and uncertainties include
those described throughout this Information Statement. Given these
risks and uncertainties, readers are cautioned not to place undue
reliance on such forward-looking statements. Readers are urged to
carefully review and consider the various disclosures made in this
Information Statement and in other documents we file from time to
time with the Securities and Exchange Commission (the “SEC”)
that disclose risks and uncertainties that may affect our business.
The forward-looking statements in this Information Statement do not
reflect the potential impact of any divestitures, mergers,
acquisitions, or other business combinations that had not been
completed as of the date of filing of this Information
Statement. In addition, the forward-looking statements in this
Information Statement are made as of the date of this filing, and
we do not undertake, and expressly disclaim any duty to update such
statements, whether as a result of new information, new
developments or otherwise, except to the extent that disclosure may
be required by law.
ACTION NO. 1
AMENDMENT TO THE ARTICLES OF INCORPORATION
TO INCREASE THE AUTHORIZED SHARES OF COMMON STOCK
On September 12, 2022, the
Board and Majority Shareholder approved the Amended Articles, which
increase our authorized shares of Common Stock from 200,000,000 to
750,000,000 (the “Share Increase”). The Share Increase will
become effective upon the filing of the Amended Articles,
substantially as set forth on Annex
A (subject to any changes required by applicable law).
We will file the Amended Articles to effectuate the Share Increase
approximately (but not less than) 20 days after the definitive
information statement is mailed to our shareholders.
Outstanding Shares and Purpose of the Amendment
Our Articles of Incorporation currently authorize us to issue a
maximum of 200,000,000 shares of Common Stock, par value
$0.001 per share, and 10,000,000 shares of preferred stock. As of
the Record Date, we had 161,704,695 shares of Common Stock issued
and outstanding and 25,000 shares of Series A Preferred Stock
issued and outstanding.
The Board of Directors believes that the increase in our authorized
Common Stock will provide us with greater flexibility with respect
to our capital structure for purposes including additional equity
financings and stock-based acquisitions.
Effects of the Increase in Authorized Common Stock
The additional shares of Common Stock will have the same rights as
the presently authorized shares, including the right to cast one
vote per share of Common Stock. Although the authorization of
additional shares will not, in itself, have any effect on the
rights of any holder of our Common Stock, the future issuance of
additional shares of Common Stock (other than by way of a stock
split or dividend) would have the effect of diluting the voting
rights and could have the effect of diluting earnings per share and
book value per share of existing shareholders.
At present, the Board has no plans to issue the additional shares
of Common Stock authorized by the Amended Articles. However, it is
possible that some of these additional shares could be used in the
future for various other purposes without further shareholder
approval, except as such approval may be required in particular
cases by our charter documents, applicable law or the rules of
any stock exchange or other quotation system on which our
securities may then be listed. These purposes may include: raising
capital, providing equity incentives to employees, officers or
directors, establishing strategic relationships with other
companies, and expanding our business or product lines through the
acquisition of other businesses or products.
We could also use the additional shares of Common Stock that will
become available pursuant to the Amended Articles to oppose a
hostile takeover attempt or to delay or prevent changes in control
or management of our company. Although the Board’ approval of the
Amended Articles was not prompted by the threat of any hostile
takeover attempt (nor is the Board currently aware of any such
attempts directed at us), nevertheless, shareholders should be
aware that the Amended Articles could facilitate future efforts by
us to deter or prevent changes in control of our company, including
transactions in which our shareholders might otherwise receive a
premium for their shares over then current market prices.
No Appraisal Rights
Our shareholders are not entitled to appraisal rights with respect
to the Share Increase. Furthermore, we do not intend to
independently provide our shareholders with any such rights.
Approval of the Board of Directors and Majority
Shareholder
On September 12, 2022, the
Board of Directors and Majority Shareholder approved the Share
Increase by written consent in lieu of a meeting. Accordingly, in compliance with the laws of the
State of Nevada and our Bylaws, a majority of the outstanding
voting shares has approved the Share Increase, and no other vote or proxy is required of the
shareholders.
ACTION NO. 2
AMENDMENT TO THE ARTICLES OF INCORPORATION TO CHANGE
OUR NAME FROM IMPERALIS HOLDING CORP. TO TURNONGREEN, INC.
On September 12, 2022, the
Board and Majority Shareholder approved the Amended Articles, which
change our name from Imperalis Holding Corp. to TurnOnGreen, Inc.
(the “Name Change”). The Name Change will become effective
upon the filing of the Amended Articles, substantially as set forth
on Annex A (subject to any changes required
by applicable law). We will file the Amended Articles to effectuate
the Share Increase approximately (but not less than) 20 days after
the definitive information statement is mailed to our
shareholders.
Reasons for the Amendment
The change in our corporate name is intended to strengthen our
Company’s brand. The new corporate name will reflect that the
Company will continue the existing business operations of TOGI.
Accordingly, our Board has concluded that it is in the Company’s
best interests to change our corporate name to TurnOnGreen,
Inc.
Effect of the Amendment
Once the Amended Articles are filed with the Nevada Secretary of
State, the Name Change will not have any material effect on our
business, operations, or reporting requirements or affect the
validity or transferability of any existing stock certificates that
bear the name “Imperalis Holding Corp.” Shareholders with
certificated shares may continue to hold their existing stock
certificates and will not be required to submit their stock
certificates for exchange, except as otherwise provided herein. The
rights of shareholders holding certificated shares under existing
stock certificates and the number of shares represented by those
certificates will remain unchanged. Direct registration accounts
and any new stock certificates that are issued after the name
change becomes effective will bear the name “TurnOnGreen, Inc.”
Article I of the Amended Articles will read in its entirety as
follows:
“The name of this corporation is TurnOnGreen, Inc. (hereinafter,
the “Corporation”).”
No Appraisal Rights
Our shareholders are not entitled to appraisal rights with respect
to the Name Change. Furthermore, we do not intend to independently
provide our shareholders with any such rights.
Approval of the Board of Directors and Majority
Shareholder
On September 12, 2022, the
Board of Directors and Majority Shareholder approved the Name
Change by written consent in lieu of a meeting. Accordingly, in compliance with the laws of the
State of Nevada and our Bylaws, a majority of the outstanding
voting shares has approved the Name Change, and no other vote or proxy is required of the
shareholders.
ACTION NO. 3
ADOPTION OF THE AMENDED AND RESTATED BYLAWS
On September 12, 2022, the
Board and Majority Shareholder approved an amendment and
restatement of the Company’s Bylaws in substantially the same form,
terms and conditions as attached hereto as Annex
B (the “Amended Bylaws”). The Board believes
the adoption of the Amended Bylaws is in the best interests of the
shareholders as the Amended Bylaws provide the Company with the
flexibility necessary to carry out its business plan and attract
potential strategic partners.
Reason for the Amendment
The overall goal of the amendments described below is to improve
and enhance the Company’s corporate governance structure and
simplify the Bylaws.
Therefore, the Board believes that the Amended Bylaws will make the
administration of the future operations of the Company more
efficient and provide more flexibility for the management of the
Company within the limits of applicable law, including, allowing
the Board to set the number of directors and fill vacancies in the
Board, to be consistent with the provisions of the Articles of
Incorporation of the Company. The adoption of the Amended Bylaws
will not alter the directors’ fiduciary obligations to the
Company.
No Appraisal Rights
Our shareholders are not entitled to appraisal rights in connection
with the amendment to the Bylaws as set forth above. Furthermore,
we do not intend to independently provide our shareholders with any
such rights.
Approval of the Board of Directors and Majority
Shareholder
On September 12, 2022, the
Board and Majority Shareholder approved the Amended Bylaws by
written consent in lieu of a meeting. Accordingly, in compliance with the laws of the
State of Nevada and our Bylaws, a majority of the outstanding
voting shares has approved the Amended Bylaws, and no other vote or
proxy is required of the shareholders.
ACTION NO. 4
APPROVAL OF EXECUTIVE COMPENSATION A NON-BINDING ADVISORY BASIS
("SAY-ON-PAY")
The Dodd-Frank Wall Street Reform and
Consumer Protection Act, enacted in 2010, requires that we provide
our shareholders with the opportunity to vote to approve, on a
non-binding, advisory basis, the compensation of our named
executive officers as disclosed in this Information Statement in
accordance with the compensation disclosure rules of the
SEC. Upon the recommendation of the Board, the Majority
Shareholder also approved, on a non-binding basis, the compensation
paid to our named executive officers for the fiscal year ended
December 31, 2021, which is commonly known as a “say-on-pay.”
The Board and Majority Shareholder
have approved the following Action:
“RESOLVED, that the shareholders approve, on an advisory basis,
the compensation paid to the Company’s named executive officers as
disclosed pursuant to Item 402 of Regulation S-K, including the
compensation tables and narrative discussion in the Company’s
Annual Report on Form 10-K.”
The Board and Shareholders approved
this resolution because they believe that the policies and
practices described in the Compensation of Directors and
Executive Officers section are
effective in achieving our goals of rewarding sustained financial
and operating performance and leadership excellence, aligning the
executives’ long-term interests with those of our shareholders and
motivating the executives to remain with us for long and productive
careers.
Approval of the Board of Directors and Majority
Shareholder
On September 12, 2022, the
Board and Majority Shareholder approved the Say-On-Pay proposal by
written consent in lieu of a meeting. Accordingly, in compliance with the laws of the
State of Nevada and our Bylaws, a majority of the outstanding
voting shares has approved the Say-On-Pay
proposal, and no other vote or proxy
is required of the shareholders.
ACTION NO. 5
APPROVAL OF THE FREQUENCY OF HOLDING FUTURE ADVISORY VOTES ON
EXECUTIVE COMPENSATION
The Dodd-Frank Act also enables the Company’s shareholders to vote,
on a non-binding advisory basis, on the frequency with which they
would prefer to cast a non-binding advisory vote on the
compensation of the Company’s Named Executive Officers. Pursuant to
Section 14A of the Exchange Act, the Company is required to hold an
advisory vote to determine the frequency of the advisory
shareholder vote on executive compensation at least every six (6)
years.
The Board and Majority Shareholder have determined that the
frequency of an advisory vote on the compensation of our named
executive officers will be conducted every three (3) years. The
next advisory vote on the executive compensation and on the
frequency of an advisory vote on executive compensation will take
place in 2025 and 2028, respectively.
In considering the interests of our shareholders and the Company,
the Board has determined that the recommended frequency for which
the Company should hold a shareholder advisory vote to approve the
compensation paid to the Company’s named executive officers should
be every three (3) years. We believe that every three (3)
years is the appropriate frequency to hold a Say-on-Pay vote for
several reasons. As our compensation programs reward both
short-term and long-term performance, shareholder input on
executive compensation would be most useful if the effectiveness of
our compensation program is evaluated and judged over a multi-year
period. Further, a three-year interval provides the Board with
sufficient time to evaluate the effectiveness of its compensation
policies and implement changes in response to its evaluation and
the results of the advisory vote. Thus, the Board recommends that
shareholders approve an advisory vote on the Say-On-Pay frequency
of every three (3) years. The Majority Shareholder has approved the
Board’s recommendation.
The Board believes that an advisory vote on executive compensation
every three years is consistent with the Company’s practice of
seeking input and engaging in dialogue with its shareholders on
corporate governance matters (including the practice of having all
directors elected annually and annually providing shareholders the
opportunity to ratify the Company’s selection of independent
accounting firm) and the Company’s executive compensation
philosophy, policies and practices. While the Board
values the opinions of the Company’s shareholders, this vote was
and is advisory, which means that the vote on frequency is not
binding on the Company, the Board and/or the Compensation
Committee.
Approval of the Board of Directors and Majority
Shareholder
On September 12, 2022, by
written consent in lieu of a meeting, the Board and Majority
Shareholder approved the frequency of the advisory vote on
executive compensation every three years. Accordingly, in compliance with the laws of the
State of Nevada and our Bylaws, a majority of the outstanding
voting shares has approved the frequency of the advisory
vote on executive compensation, and no
other vote or proxy is required of the shareholders.
CERTAIN INFORMATION REGARDING THE COMPANY
Voting Securities
There are currently two class of voting securities of the Company
entitled to be voted at a meeting, or by written consents or
authorizations if no meeting is held. As of the date of this
Information Statement, the Company’s authorized capital stock
included 200,000,000 shares of common stock, of which 161,704,695
shares are issued and outstanding, and 10,000,000 shares of
preferred stock, of which 25,000 shares of Series A Preferred Stock
are issued and outstanding.
Security Ownership of Certain Beneficial Owners and
Management
The following table sets forth certain information with respect to
the beneficial ownership of the Company’s outstanding common stock
as of September 12, 2022 by (i) any holder of more than five (5%)
percent; (ii) each of the named executive officers, directors, and
director nominees; and (iii) our directors, director nominees and
named executive officers as a group. Except as otherwise indicated,
each of the shareholders listed below has sole voting and
investment power over the shares beneficially owned.
Unless otherwise indicated in the footnotes to the following table,
each person named in the table has sole voting and investment power
and that person’s address is c/o TurnOnGreen, Inc., 1421 McCarthy
Blvd., Milpitas, California 95035.
Name
and Address of Beneficial Owners of Common Stock |
|
Number of
shares
beneficially
owned(1)
|
|
|
% of
Common
Stock
|
|
Amos Kohn |
|
|
- |
|
|
|
- - - |
|
Darren Magot |
|
|
- |
|
|
|
- - - |
|
Marcus Charuvastra |
|
|
- |
|
|
|
- - - |
|
David J. Katzoff |
|
|
- |
|
|
|
- - - |
|
Douglas Gintz |
|
|
|
|
|
|
|
|
Directors and Officers (Five
persons) |
|
|
- |
|
|
|
- - - |
|
BitNile Holdings, Inc.
(2) |
|
|
299,773,734 |
|
|
|
90.3 |
% |
|
(1) |
Beneficial ownership percentages
are calculated based on 161,704,695 shares of common stock issued
and outstanding. Beneficial ownership is determined in accordance
with Rule 13d-3 of the Exchange Act. |
Represents (i) 129,363,756 shares held by BitNile, Inc., (ii)
16,501 shares held by DPL, (iii) 10,873,314 shares of Common Stock
issuable upon conversion of an outstanding convertible promissory
note held by DPL in the principal face amount of $101,529, which is
convertible into shares at a conversion price of $0.01 per share
and (iv) 159,520,163 shares issuable upon conversion of BitNile’s
Series A Preferred Stock. BitNile may be deemed to beneficially own
the shares beneficially owned by BitNile, Inc. and DPL as BitNile,
Inc. and DPL are wholly owned subsidiaries of BitNile. Milton C.
Ault, III, the Executive Chairman of BitNile, exercises voting and
dispositive power over the shares owned by BitNile. The business
address of each of these entities and individuals is 11411 Southern
Highlands Parkway, Suite 240, Las Vegas, Nevada 89141.
DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth the names and positions of our
executive officers and directors. Directors will be elected at our
annual meeting of shareholders and serve for one year or until
their successors are elected and qualify. Officers are elected by
the Board and their terms of office are, except to the extent
governed by employment contract, at the discretion of the
Board.
Name |
|
Age |
|
|
Position |
Amos Kohn |
|
|
62 |
|
|
Chief Executive Officer and Director |
|
|
|
|
|
|
|
Darren Magot |
|
|
53 |
|
|
Director |
|
|
|
|
|
|
|
Marcus Charuvastra |
|
|
44 |
|
|
President and Chief Revenue Officer |
|
|
|
|
|
|
|
David J. Katzoff |
|
|
61 |
|
|
Chief Financial Officer, Secretary and Treasurer |
|
|
|
|
|
|
|
Douglas Gintz |
|
|
55 |
|
|
Chief Technology Officer |
Set forth below is certain information with respect to the
above-named officers and directors:
Amos Kohn has been our Chief Executive Officer and a member
of our Board since the date of the Acquisition. Prior thereto, he
was the Founder, Chief Executive Officer and a member of the board
of directors of the TOGI prior to the Acquisition (the “Former
TOGI”), including when its name was Coolisys Technologies,
Inc., since its formation in January of 2020. He has led Digital
Power, now part of TOGI, for more than 15 years, and currently he
is leading TOGI as the chief executive officer and architect of its
EVSE portfolio. He served as a director of the Parent from 2003 to
2020, its President and Chief Executive Officer from 2008 to 2017
and President from 2017 to 2020. Prior to his appointment as
President and Chief Executive Officer of Digital Power, Mr. Kohn
held executive roles with several U.S. and international companies.
For more than 30 years, Mr. Kohn has provided leadership, oversight
and strategic direction for worldwide privately held and publicly
traded companies in the high-technology sector. He holds a Bachelor
of Science degree in electrical and electronics engineering and a
Certificate of Business Administration from the University of
California, Berkeley, and a Major (Ret) at IDF. He named as an
inventor on several United States and international patents. We
believe that Mr. Kohn’s extensive executive-level management
experience in diversified industries expanding companies into new
markets including power electronics, eMobility, telecommunications
and defense give him the qualifications and skills to serve as one
of our directors.
Darren Magot served as our Chief Executive Officer from
March 2022 through the date of the Acquisition. He remains a member
of the Board. Mr. Magot currently serves the Senior Vice President
of BitNile, Inc., a wholly owned subsidiary of the Parent
(“BNI”), since February 2022, and as a member of the board
of directors of Ault & Company, Inc., since his appointment in
July 2018. Mr. Magot has served as the Chief Executive officer and
sole member of the Board of Directors of AC Management, Inc., and
AMRE Management, Inc., since October 2020 and previously served as
the Chief Executive Officer and as a director of Ault Alliance,
Inc., a wholly owned subsidiary of the Parent, from January 2019 to
February 2022. Mr. Magot has over 30 years of experience in sales
and sales management, financial management, and business
development with companies in both the private and public sector. A
proven leader in all functional areas of both private and public
organizations, with a track record in successful financial and
operational leadership, he holds a bachelor's degree in Finance
from California State University. We believe that Mr. Magot’s
expertise in strategic planning, development, organizational change
and efficiency for disruptive and emerging technologies give him
the qualifications and skills to serve as one of our directors.
Marcus Charuvastra has served as our President since
the Acquisition. Prior thereto, he served as the President of the
Former TOGI since January 2022 and previously served as its Chief
Revenue Officer since June 2021. Mr. Charuvastra is an accomplished
leader with 20 years of experience in strategic planning, sales,
services, marketing and business and organizational development.
Mr. Charuvastra spent nine years at Targeted Medical Pharma, Inc.
serving as Vice President of Operations and as the Managing
Director of this microcap biotech start-up, from 2012 to May 2021.
During his tenure, he was instrumental in guiding Targeted Medical
Pharma’s initial public offering. Mr. Charuvastra was previously
Director of Sales and Marketing at Physician Therapeutics from 2009
to 2012 and was responsible for building the sales and distribution
network in the United States and abroad. He is a graduate of
University of California Los Angeles.
David J. Katzoff has served as our Chief Financial
Officer since December 2021. Mr. Katzoff has served as Senior Vice
President of Finance for the Parent since January 2019. Mr. Katzoff
currently serves as the Chief Financial Officer of Alzamend Neuro,
Inc., a biotechnology firm dedicated to finding the treatment,
prevention and cure for Alzheimer’s Disease, for which he served as
its Chief Operating Officer from December 2020 to August 2022. From
November 2019 to December 2020, Mr. Katzoff served as Alzamend’s
Senior Vice President Operations. From 2015 to 2018, Mr. Katzoff
served as Chief Financial Officer of Lumina Media, LLC, a privately
held media company and publisher of life-style publications. From
2003 to 2017, Mr. Katzoff served a Vice President Finance for Local
Corporation, a publicly held local search company. Mr. Katzoff
received a B.S. in Business Management from the University of
California at Davis.
Douglas Gintz has served as our Chief Technology
Officer since the Acquisition. Prior thereto, he served as the
Chief Technology Officer of the Former TOGI since February 2021.
Mr. Gintz is responsible for driving strategic software initiatives
and delivering key technologies essential to the market penetration
of our EV charging solutions business. Mr. Gintz has over 30 years
of hands-on experience bringing products to market. Specializing in
emerging technologies, Mr. Gintz has developed manufacturing
compliance systems, DNA reporting engines, medical billing
software, e-commerce applications, and retail software for
companies ranging from startups to multinational corporations. Mr.
Gintz also currently serves as the Chief Technology Officer and
Director of Global Technology Implementation for the Parent since
February 2021. Mr. Gintz's previous leadership roles include Chief
Executive Officer of Pacific Coders, LLC. from August 2002 to
January 2022; Chief Technology Officer of Endocanna Health, Inc.
from January 2019 to January 2021; Mr. Gintz served at Targeted
Medical Pharma, Inc., a publicly-traded microcap, as Chief
Marketing Officer and Technology Officer from January 2018 to
December 2019, and Chief Technology Officer and Chief Information
Officer from January 2012 to May 2016.
Election of Directors and Officers
Directors are elected to serve until the next annual meeting of
shareholders and until their successors have been elected and
qualified. Officers are appointed to serve until the meeting of the
Board following the next annual meeting of shareholders and until
their successors have been elected and qualified.
Audit Committee
We do not have any committees of the Board. Consequently, the Board
serves as the Audit Committee.
Director Independence
We do not currently have any independent directors. We evaluate
independence by the standards for director independence established
by Marketplace Rule 5605(a)(2) of the Nasdaq Stock Market, Inc.
Code of Ethics
Our Board has not adopted a Code of Ethics due to our size and lack
of employees.
Family Relationships
None.
Legal Proceedings
Our directors and executive officers have not been involved in any
of the following events during the past ten years:
|
1. |
any bankruptcy petition filed by or against such person or any
business of which such person was a general partner or executive
officer either at the time of the bankruptcy or within two years
prior to that time; |
|
2. |
any conviction in a criminal proceeding or being subject to a
pending criminal proceeding (excluding traffic violations and other
minor offenses); |
|
3. |
being subject to any order, judgment, or decree, not
subsequently reversed, suspended or vacated, of any court of
competent jurisdiction, permanently or temporarily enjoining him
from or otherwise limiting his involvement in any type of business,
securities or banking activities or to be associated with any
person practicing in banking or securities activities; |
|
4. |
being found by a court of competent jurisdiction in a civil
action, the Securities and Exchange Commission or the Commodity
Futures Trading Commission to have violated a federal or state
securities or commodities law, and the judgment has not been
reversed, suspended, or vacated; |
|
5. |
being subject of, or a party to, any federal or state judicial
or administrative order, judgment decree, or finding, not
subsequently reversed, suspended or vacated, relating to an alleged
violation of any federal or state securities or commodities law or
regulation, any law or regulation respecting financial institutions
or insurance companies, or any law or regulation prohibiting mail
or wire fraud or fraud in connection with any business entity;
or |
|
6. |
being subject of or party to any sanction or order, not
subsequently reversed, suspended, or vacated, of any
self-regulatory organization, any registered entity or any
equivalent exchange, association, entity or organization that has
disciplinary authority over its members or persons associated with
a member. |
Change of Control Arrangements
We have no pension or compensatory plans or other arrangements
which provide for compensation to our directors or officers in the
event of a change in our control. There are no arrangements known
to us the operation of which may at a later date result in a change
in control of our company.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR
INDEPENDENCE
BitNile will continue to perform certain administrative services
for TOGI. These services include certain use of BitNile’s
management information system, assist in the preparation of federal
and state tax returns and certain cash management services.
Imperalis Note
On December 15, 2021, Digital Power Lending, LLC (“DPL”), a
wholly-owned subsidiary of BitNile, entered into an exchange
agreement with IMHC pursuant to which IMHC issued to DPL a
convertible promissory note (the “December Note”) in the
principal amount of $101,529, in exchange for prior promissory
notes dated August 18, 2021 and November 5, 2021 issued by IMHC to
DPL in the aggregate principal amount of $100,000, which had
accrued and unpaid interest of $1,529 as of the December 15, 2021.
The terms of the December Note provide for (i) an interest rate at
10% per annum, (ii) a maturity date of December 15, 2023, and (iii)
conversion of the principal, together with accrued but unpaid
interest thereon, into shares of IMHC’s Common Stock at DPL’s
option at a conversion price of $0.01 per share.
Securities Purchase Agreement
As previously reported on a Current Report on Form 8-K filed by
IMHC on March 21, 2022, on March 20, 2022, BitNile and IMHC entered
into a Securities Purchase Agreement (the “Agreement”) with
Former TOGI. Pursuant to the Agreement, at the closing of the
Agreement (the “Closing”), which occurred on September 6,
2022 (the “Closing Date”), BitNile (i) delivered to IMHC all
of the outstanding shares of common stock of Former TOGI held by
BitNile, and (ii) eliminated all of the intracompany accounts
between BitNile and the Former TOGI evidencing historical equity
investments made by BitNile to the Former TOGI, in the approximate
amount of $36,000,000, all in consideration for the issuance by
IMHC to BitNile (the “Acquisition”) of an aggregate of
25,000 newly designated shares of Series A Preferred Stock (the
“Series A Preferred Stock”), with each such share having a
stated value of $1,000. The Series A Preferred Stock has an
aggregate liquidation preference of $25 million, is convertible
into shares of IMHC’s common stock, par value $0.001 per share (the
“Common Stock”) at BitNile’s option, is redeemable by
BitNile, and entitles BitNile to vote with the Common Stock on an
as-converted basis.
Immediately following the Closing Date, the Former TOGI became a
wholly-owned subsidiary of IMHC. IMHC intends to dissolve its
dormant subsidiary. Further, IMHC and TOGI closed an upstream
merger whereby TOGI merged with and into IMHC and ceases to exist.
Upon consummation of the merger, IMHC acquired two operating
subsidiaries, TOGT and Digital Power. IMHC continues the existing
business operations of TOGI as a publicly-traded company under the
name Imperalis Holding Corp., but intends to change the
registrant’s name to TurnOnGreen, Inc. as soon as practicable after
mailing of this Information Statement.
Policies and Procedures for Related Party Transactions
The TurnOnGreen audit committee will have the primary
responsibility for reviewing and approving or disapproving “related
party transactions,” which are transactions between TurnOnGreen and
related persons in which the aggregate amount involved exceeds or
may be expected to exceed $120,000 and in which a related person
has or will have a direct or indirect material interest. The policy
regarding transactions between TurnOnGreen and related persons will
provide that a related person is defined as a director, executive
officer or greater than 5% beneficial owner of common stock, in
each case since the beginning of the most recently completed year,
and any of their immediate family members. An investor may obtain a
written copy of this policy, once adopted, by sending a written
request to TurnOnGreen, Inc., 1421 McCarthy Blvd, California 95035,
Attention: Legal Department. TurnOnGreen’s audit committee charter
that will be in effect will provide that the audit committee shall
review and approve or disapprove certain related party
transactions, including material transactions with BitNile.
CORPORATE GOVERNANCE
Director Independence
We do not have any independent directors.
Board Committees
Our Board does not have any committees, as companies whose
securities are not traded on a national exchange are not required
to have Board committees. However, at such time in the future that
we appoint independent directors on our Board, we expect to form
the appropriate Board committees and identity an audit committee
financial expert. All functions of an audit committee, nominating
committee and compensation committee are and have been performed by
our Board.
Board Oversight
Our management is responsible for managing risk and bringing the
most material risks facing the Company to the Board’s attention.
Because we do not yet have separately designated committees, the
entire Board has oversight responsibility for the processes
established to report and monitor material risks applicable to the
Company relating to (1) the integrity of the Company’s financial
statements and review and approve the performance of the Company’s
internal audit function and independent accountants, (2) succession
planning and risk related to the attraction and retention of talent
and to the design of compensation programs and arrangements, and
(3) monitoring the design and administration of the Company’s
compensation programs to ensure that they incentivize strong
individual and group performance and include appropriate safeguards
to avoid unintended or excessive risk taking by Company
employees.
Director Nominations
There has not been any defined policy or procedure requirements for
shareholders to submit recommendations or nomination for directors.
The Board of Directors does not believe that a defined policy with
regard to the consideration of candidates recommended by
shareholders is necessary at this time because, given the early
stages of the Company’s development, a specific nominating policy
would be premature and of little assistance until the Company’s
business operations are at a more advanced level.
Shareholder Communication with the Board
The Board of Directors does not currently provide a process for
shareholders to send communications to the Board of Directors
because management of the Company believes that until this point it
has been premature to develop such processes given the limited
liquidity of the common stock of the Company. However, the new
management of the Company may establish a process for shareholder
communications in the future.
EXECUTIVE COMPENSATION
Summary Compensation Table
IMHC did not pay any compensation to its Chief Executive Officer
during the last two fiscal years through the Acquisition and there
were no executive officers serving as of the end of the last two
fiscal years whose compensation exceeded $100,000.
The following table sets forth summary compensation information for
the following persons, which provides the figures for IMHC
following the Acquisition: (i) all persons serving as our
principal executive officer during the years ended December 31,
2021 and 2020, and (ii) our two other most highly compensated
executive officers who received compensation during the years ended
December 31, 2021 and 2020 of at least $100,000 and who were
executive officers on December 31, 2021. We refer to these persons
as our “named executive officers” in this Information Statement.
The following table includes all compensation earned by the named
executive officers for the respective period, regardless of whether
such amounts were actually paid during the period:
Name and principal position |
|
Year |
|
|
Salary ($) |
|
|
Bonus ($) |
|
|
Stock
Awards
($)
|
|
|
Option
Awards
($)
|
|
|
All Other
Compensation ($)
|
|
|
Total ($) |
|
Amos Kohn |
|
|
2021 |
|
|
|
350,000 |
|
|
|
2,500 |
|
|
|
|
|
|
|
|
|
|
|
30,640 |
|
|
|
383,140 |
|
Chief Executive Officer |
|
|
2020 |
|
|
|
350,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
30,247 |
|
|
|
380,247 |
|
Marcus Charuvastra |
|
|
2021 |
|
|
|
92,387 |
(1) |
|
|
27,250 |
|
|
|
|
|
|
|
|
|
|
|
751 |
|
|
|
120,388 |
|
President and Chief Revenue Officer |
|
|
2020 |
|
|
|
- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
- |
|
(1) Mr. Charuvastra’s
annual salary is $125,000. The figure in the table reflects the
fact that he was hired on April 6, 2021.
Employment Agreements
As of the date of this Information Statement, we have no contract,
agreement, plan or arrangement, whether written or unwritten, that
provides for payments to an executive officer at, following or in
connection with any termination, including without limitation,
resignation, severance, retirement or a constructive termination of
an executive officer, or a change in control of our company or a
change in the executive officer’s responsibilities, with respect to
each executive officer.
Termination Provisions
As of the date of this Information Statement, we have no contract,
agreement, plan, or arrangement, whether written or unwritten, that
provides for payments to a Named Executive Officer at, following,
or in connection with any termination, including without limitation
resignation, severance, retirement or a constructive termination of
a Named Executive Officer, or a change in control of the Company or
a change in the Named Executive Officer’s responsibilities, with
respect to each Named Executive Officer, other than with respect to
Mr. Kohn.
Outstanding Equity Awards at Fiscal Year End
As of December 31, 2021 none of our Named Executive Officers held
any unexercised options, stock that have not vested, or other
equity incentive plan awards.
Director Compensation
To date, we have not paid any of our directors any compensation for
serving on our Board.
DESCRIPTION OF SECURITIES
Common Stock
We are authorized to issue 200,000,000 shares of Common Stock. As
of the date of this Information Statement, there were 161,704,695
shares of Common Stock issued and outstanding.
The holders of Common Stock have equal ratable rights to dividends
from funds legally available therefore, when, as and if declared by
our Board. Holders of Common Stock are also entitled to share
ratably in all of IMHC’s assets available for distribution to
holders of Common Stock upon liquidation, dissolution or winding up
of the affairs of IMHC.
The holders of shares of our Common Stock do not have cumulative
voting rights, which means that the holders of more than 50% of
such outstanding shares, voting for the election of directors, can
elect all of the directors to be elected, if they so choose, and in
such event, the holders of the remaining shares will not be able to
elect any of our directors. The holders of 50% percent of the
outstanding Common Stock constitute a quorum at any meeting of
shareholders, and the vote by the holders of a majority of the
outstanding shares or a majority of the shareholders at a meeting
at which quorum exists are required to effect certain fundamental
corporate changes, such as liquidation, merger or amendment of our
articles of incorporation.
Voting Rights
Except as otherwise required by law or as may be provided by the
resolutions of the Board of Directors authorizing the issuance of
common stock, all rights to vote and all voting power shall be
vested in the holders of common stock. Each share of Common Stock
shall entitle the holder thereof to one vote.
No Cumulative Voting
Except as may be provided by the resolutions of the Board of
Directors authorizing the issuance of Common Stock, cumulative
voting by any shareholder is expressly denied.
Rights upon Liquidation, Dissolution or Winding-Up of the
Company
Upon any liquidation, dissolution or winding-up of the corporation,
whether voluntary or involuntary, the remaining net assets of the
Company shall be distributed pro rata to the holders of the common
stock.
Preferred Stock
The Company is authorized to issue up to 10,000,000 shares of
Preferred Stock, par value $0.001. The Preferred Stock may be
issued in one or more classes or series by the board of directors,
who has the authority to designate the rights, preferences, and
other aspects of each class or series of Preferred Stock.
We refer you to our Articles of Incorporation, any amendments
thereto, Bylaws, and the applicable provisions of the Nevada
Revised Statutes for a more complete description of the rights and
liabilities of holders of our securities.
Description of the Series A Preferred Stock
There are 25,000 shares of Series A Preferred Stock issued and
outstanding. Each share of Series A Preferred Stock has a stated
value of $1,000, for an aggregate value of $25 million.
In the event that TOGI shall be liquidated, dissolved or wound up,
then before any distribution or payment shall be made to the
holders of any Common Stock or any other class or series of junior
stock, the holders of Series A Preferred Stock shall be entitled to
receive liquidating distributions in an amount equal to the stated
value for each share of Series A Preferred Stock held by such
holders.
Dividends on the Series A Preferred Stock shall accrue daily and be
cumulative from, and including, the date of original issue and
shall be payable quarterly on the last day of each calendar quarter
out of funds legally available therefor, at the rate of eight
percent (8%) per annum based on a 360 day calendar year.
Each holder shall be entitled to vote on an “as converted” basis
with holders of outstanding shares of Common Stock, voting together
as a single class, with respect to any and all matters presented to
the stockholders for their action or consideration. For so long as
the holder shall continue to hold any shares of Series A Preferred
Stock issued to it on the date of the Acquisition, the holder shall
be entitled to elect a number of directors to the Board of
Directors equal to a percentage determined by the number of Series
A Preferred Stock beneficially owned by the holders, determined on
an “as converted” basis, divided by the sum of the number of shares
of Common Stock outstanding plus the number of Series A Preferred
Stock outstanding on an “as converted” basis
Each share of Series A Preferred Stock may be convertible at the
holder’s option into shares of Common Stock of the Company where
the conversion price shall be the stated value of each share of
Series A Preferred Stock divided by eighty percent (80%) of the
volume weighed average price (“VWAP”) of the Company’s
Common Stock over the ten (10) days immediately preceding the date
of conversion. The conversion price will be subject to standard
anti-dilution provisions in connection with any stock split, stock
dividend, subdivision or similar reclassification of the Common
Stock as well as carry full ratchet protection.
Upon the one-year anniversary of the Acquisition, the shares of
Series A Preferred Stock shall be subject to redemption in cash at
the option of the holder in an amount per share equal to the stated
value plus all accrued and unpaid dividends thereon.
Options
None.
Warrants
None.
Liability and Indemnity of Directors and Officers
Our bylaws provide that we may indemnify our officers, directors,
employees, agents and any other persons to the maximum extent
permitted by the Nevada Revised Statutes.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. Our SEC filings are available to
the public over the Internet at the SEC’s website at
http://www.sec.gov. You may also read and copy any document we file
at the SEC’s Public Reference Room at 100 F Street, N.E.,
Washington, D.C. 20549. Contact the SEC at 1-800-SEC-0330 for
further information on the operation of the Public Reference
Room.
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY
By Order of the Board of Directors,
/s/ Amos Kohn |
|
|
|
Amos Kohn |
Chief Executive Officer and
Chairman of the Board |
|
September 26, 2022 |
ANNEX A
BARBARA K. CEGAVSKE
Secretary of State 202 North Carson Street Carson City, Nevada
89701-4201 (775) 684-5708Website: www.nvsos.gov Profit Corporation:
Certificate of Amendment (PURSUANT TO NRS 78.380 &
78.385/78.390) Certificate to Accompany Restated Articles or
Amended and Restated Articles (PURSUANT TO NRS 78.403) Officer's
Statement (PURSUANT TO NRS 80.030) TYPE OR PRINT -USE DARK INK ONLY
- DO NOT HIGHLIGHT Page 1 of 2 Revised: 1/1/2019 1. Entity
information: Name of entity as on file with the Nevada Secretary of
State: This form must be accompanied by appropriate fees.
Certificate to Accompany Restated Articles or Amended and Restated
Articles Certificate of Amendment to Articles of Incorporation
(Pursuant to NRS 78.385 and 78.390 - After Issuance of Stock) The
vote by which the stockholders holding shares in the corporation
entitling them to exercise at least a majority of the voting power,
or such greater proportion of the voting power as may be required
in the case of a vote by classes or series, or as may be required
by the provisions of the articles of incorporation* have voted in
favor of the amendment is: Certificate of Amendment to Articles of
Incorporation (Pursuant to NRS 78.380 - Before Issuance of Stock)
The undersigned declare that they constitute at least two-thirds of
the following: (Check only one box) incorporators board of
directors The undersigned affirmatively declare that to the date of
this certificate, no stock of the corporation has been issued
Officer's Statement (foreign qualified entities only) -Name in home
state, if using a modified name in Nevada: Jurisdiction of
formation: Changes to takes the following effect: The entity name
has been amended. The purpose of the entity has been amended. The
authorized shares have been amended. Other: (specify changes) *
Officer's Statement must be submitted with either a certified copy
of or a certificate evidencing the filing of any document,
amendatory or otherwise, relating to the original articles in the
place of the corporations creation. Dissolution Merger Conversion
3. Type of Amendment Filing Being Completed: (Select only one box)
(If amending, complete section 1, 3, 5 and 6.) 2. Restated or
Amended and Restated Articles: (Select one) (If amending and
restating only, complete section 1,2 3, 5 and 6) Amended and
Restated Articles * Restated or Amended and Restated Articles must
be included with this filing type. Entity or Nevada Business
Identification Number (NVID): Restated Articles - No amendments;
articles are restated only and are signed by an officer of the
corporation who has been authorized to execute the certificate by
resolution of the board of directors adopted on: The certificate
correctly sets forth the text of the articles or certificate as
amended to the date of the certificate.
BARBARA K. CEGAVSKE
Secretary of State 202 North Carson Street Carson City, Nevada
89701-4201 (775) 684-5708Website: www.nvsos.gov Profit Corporation:
Certificate of Amendment (PURSUANT TO NRS 78.380 &
78.385/78.390) Certificate to Accompany Restated Articles or
Amended and Restated Articles (PURSUANT TO NRS 78.403) Officer's
Statement (PURSUANT TO NRS 80.030) Time:Date:4. Effective Date and
Time: (Optional) (must not be later than 90 days after the
certificate is filed) 5. Information Being Changes to takes the
following effect: Changed: (Domestic The entity name has been
amended.corporations only) The registered agent has been changed.
(attach Certificate of Acceptance from new registered agent) The
purpose of the entity has been amended. The authorized shares have
been amended. The directors, managers or general partners have been
amended. IRS tax language has been added. Articles have been added.
Articles have been deleted. Other. The articles have been amended
as follows: (provide article numbers, if available) (attach
additional page(s) if necessary) 6. Signature: (Required) X
____________________________ Signature of Officer or Authorized
Signer Title X ____________________________ Signature of Officer or
Authorized Signer Title *If any proposed amendment would alter or
change any preference or any relative or other right given to any
class or series of outstanding shares, then the amendment must be
approved by the vote, in addition to the affirmative vote otherwise
required, of the holders of shares representing a majority of the
voting power of each class or series affected by the amendment
regardless to limitations or restrictions on the voting power
thereof. Please include any required or optional information in
space below: (attach additional page(s) if necessary) This form
must be accompanied by appropriate fees. Page 2 of 2 Revised:
1/1/2019
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
TURNONGREEN, INC.
****
ARTICLE I
The name of this corporation is TurnOnGreen, Inc. (hereinafter, the
“Corporation”).
ARTICLE II
The address of the Corporation’s registered office in the State of
Nevada is 701 S. Carson Street, Suite 200, Carson City, County of
Carson City, NV 89701. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted
by the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the laws of the State of
Nevada. The powers of the Corporation shall be those powers granted
by Sections 78.060 and 78.070 (as the same may be amended,
superseded or replaced by any successor sections, statutes or
provisions) of the Nevada Revised Statutes (the “NRS”),
under which this Corporation is formed.
ARTICLE IV
Section 1. |
Authorized
Shares. |
This Corporation is authorized to issue five hundred million
(500,000,000) shares of Common Stock, par value $0.001 per share
(the “Common Stock”) and fifty million (50,000,000) shares
of Preferred Stock, par value $0.001 per share (the “Preferred
Stock”). The number of authorized shares of any class or
classes of stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote
of the holders of at least a majority of the voting power of the
issued and outstanding shares of Common Stock of the Corporation,
voting together as a single class.
A statement of the designations of the Common Stock and the powers,
preferences and rights and qualifications, limitations or
restrictions thereof is as follows:
(i) Except as otherwise
provided herein or by applicable law, the holders of shares of
Common Stock shall at all times vote together as one class on all
matters (including the election of directors) submitted to a vote
or for the consent of the shareholders of the Corporation.
(ii) Each holder of shares
of Common Stock shall be entitled to one (1) vote for each share of
Common Stock held as of the applicable date on any matter that is
submitted to a vote or for the consent of the shareholders of the
Corporation.
(b) Dividends.
Subject to the preferences applicable to any series of Preferred
Stock, if any, outstanding at any time, the holders of Common Stock
shall be entitled to share equally, on a per share basis, in such
dividends and other distributions of cash, property or shares of
stock of the Corporation as may be declared by the Board of
Directors from time to time with respect to the Common Stock out of
assets or funds of the Corporation legally available therefor;
provided, however, that in the event that such dividend is paid in
the form of shares of Common Stock or rights to acquire Common
Stock, the holders of Common Stock shall receive Common Stock or
rights to acquire Common Stock, as the case may be.
(c) Liquidation.
Subject to the preferences applicable to any series of Preferred
Stock, if any are outstanding at any time, in the event of the
voluntary or involuntary liquidation, dissolution, distribution of
assets or winding up of the Corporation, the holders of Common
Stock shall be entitled to share equally, on a per share basis, all
assets of the Corporation of whatever kind available for
distribution to the holders of Common Stock.
Section 3. |
Change in Control
Transaction. |
The Corporation shall not consummate a Change in Control
Transaction without first obtaining the affirmative vote, at a duly
called annual or special meeting of the shareholders of the
Corporation, of the holders of the greater of: (A) a majority of
the voting power of the issued and outstanding shares of capital
stock of the Corporation then entitled to vote thereon, voting
together as a single class, and (B) sixty percent (60%) of the
voting power of the shares of capital stock present in person or
represented by proxy at the shareholder meeting called to consider
the Change in Control Transaction and entitled to vote thereon,
voting together as a single class. For the purposes of this
section, a “Change in Control Transaction” means the
occurrence of any of the following events:
(a) the
sale, encumbrance or disposition (other than non-exclusive licenses
in the ordinary course of business and the grant of security
interests in the ordinary course of business) by the Corporation of
all or substantially all of the Corporation’s assets;
(b) the
merger or consolidation of the Corporation with or into any other
corporation or entity, other than a merger or consolidation which
would result in the voting securities of the Corporation
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity or its parent) more than fifty
percent (50%) of the total voting power represented by the voting
securities of the Corporation or such surviving entity or its
parent outstanding immediately after such merger or consolidation;
or
(c) the
issuance by the Corporation, in a transaction or series of related
transactions, of voting securities representing more than two
percent (2%) of the total voting power of the Corporation before
such issuance, to any person or persons acting as a group as
contemplated in Rule 13d-5(b) under the Securities Exchange Act of
1934 (or any successor provision) such that, following such
transaction or related transactions, such person or group of
persons would hold more than fifty percent (50%) of the total
voting power of the Corporation, after giving effect to such
issuance.
Section 4. |
Preferred
Stock. |
The Board of Directors is authorized, subject to any limitations
prescribed by law, to provide for the issuance of shares of
Preferred Stock in series, and to establish from time to time the
number of shares to be included in each such series, and to fix the
designation, power, preferences, and rights of the shares of each
such series and any qualifications, limitations or restrictions
thereof. Except as otherwise required by law, holders of Common
Stock shall not be entitled to vote on any amendment to this
Articles of Incorporation (including any certificate of designation
filed with respect to any series of Preferred Stock) that relates
solely to the terms of one or more outstanding series of Preferred
Stock if the holders of such affected series are entitled, either
separately or together as a class with the holders of one or more
other such series, to vote thereon by law or pursuant to this
Articles of Incorporation (including any certificate of designation
filed with respect to any series of Preferred Stock).
ARTICLE V
The Corporation is to have perpetual existence.
ARTICLE VI
Section 1. |
Board of
Directors. |
The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the
powers and authority expressly conferred upon them by statute or by
this Articles of Incorporation or the Bylaws of the Corporation,
the directors are hereby empowered to exercise all such powers and
do all such acts and things as may be exercised or done by the
Corporation.
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt,
alter, amend or repeal the Bylaws of the Corporation. The
affirmative vote of at least a majority of the Board of Directors
then in office shall be required in order for the Board of
Directors to adopt, amend, alter or repeal the Corporation’s
Bylaws. The Corporation’s Bylaws may also be adopted, amended,
altered or repealed by the shareholders of the Corporation.
Notwithstanding the above or any other provision of this Articles
of Incorporation, the Bylaws of the Corporation may not be amended,
altered or repealed except in accordance with Article X of the
Bylaws. No Bylaw hereafter legally adopted, amended, altered or
repealed shall invalidate any prior act of the directors or
officers of the Corporation that would have been valid if such
Bylaw had not been adopted, amended, altered or repealed.
Section 3. |
Controlled
Company. |
(a) If,
at any time during which shares of capital stock of the Corporation
are listed for trading on either The Nasdaq Stock Market
(“Nasdaq”), the New York Stock Exchange or the NYSE American
(in either case, “NYSE”), holders of the requisite voting
power under the then-applicable Nasdaq or NYSE listing standards
notify the Corporation in writing of their election to cause the
Corporation to rely upon the applicable “controlled company”
exemptions (the “Controlled Company Exemption”) to the
corporate governance rules and requirements of the Nasdaq or the
NYSE (the “Exchange Governance Rules”), the Corporation
shall call a special meeting of the shareholders to consider
whether to approve the election to be held within ninety (90) days
of written notice of such election (or, if the next succeeding
annual meeting of shareholders will be held within ninety (90) days
of written notice of such election, the Corporation shall include a
proposal to the same effect to be considered at such annual
meeting). The Corporation shall not elect to rely upon the
Controlled Company Exemption until such time as the Corporation
shall have received the approval from holders of at least sixty-six
and two thirds percent (66 2/3%) of the voting power of the issued
and outstanding shares of capital stock of the Corporation at such
annual or special meeting.
(b) In
the event such approval is obtained, for so long as shares of the
capital stock of the Corporation are listed on either the Nasdaq or
the NYSE and the Corporation remains eligible for the Controlled
Company Exemption under the requirements of the applicable Exchange
Governance Rules, then the Board of Directors shall be constituted
such that (i) a majority of the directors on the Board of Directors
shall be Outside Directors (as defined below), and (ii) the
Corporation’s compensation committee and the governance and
nominating committee (or such committees serving similar functions
as the Board of Directors of the Corporation shall constitute from
time to time) shall consist of at least two (2) members of the
Board of Directors and shall be composed entirely of Outside
Directors. In the event the number of Outside Directors serving on
the Board of Directors constitutes less than a majority of the
directors on the Board of Directors as a result of the death,
resignation or removal of an Outside Director, then the Board of
Directors may continue to properly exercise its powers and no
action of the Board of Directors shall be so invalidated, provided,
that the Board of Directors shall promptly take such action as is
necessary to appoint new Outside Director(s) to the Board of
Directors.
(c) An
“Outside Director” shall mean a director who, currently and
for any of the past three years, is and was not an officer of the
Corporation (other than service as the chairman of the Board of
Directors) or a parent or subsidiary of the Corporation and is not
and was not otherwise employed by the corporation or a parent or
subsidiary of the Corporation.
Section 4. |
Audit
Committee. |
The Board of Directors of the Corporation shall establish an audit
committee whose principal purpose will be to oversee the
Corporation’s and its subsidiaries’ accounting and financial
reporting processes, internal systems of control, independent
auditor relationships and audits of consolidated financial
statements of the Corporation and its subsidiaries. The audit
committee will also determine the appointment of the independent
auditors of the Corporation and any change in such appointment and
ensure the independence of the Corporation’s auditors. In addition,
the audit committee will assume such other duties and
responsibilities delegated to it by the Board of Directors and
specified for it under applicable law and Exchange Governance
Rules.
Section 5. |
Corporate Governance
and Nominating Committee. |
The Board of Directors of the Corporation shall establish a
corporate governance and nominating committee whose principal
duties will be to assist the Board of Directors by identifying
individuals qualified to become members of the Board of Directors
consistent with criteria approved by the Board of Directors, to
recommend to the Board of Directors for its approval the slate of
nominees to be proposed by the Board of Directors to the
shareholders for election to the Board of Directors, to develop and
recommend to the Board of Directors the governance principles
applicable to the Corporation, as well as such other duties and
responsibilities delegated to it by the Board of Directors and
specified for it under applicable law and Exchange Governance
Rules. In the event the corporate governance and nominating
committee will not be recommending a then incumbent director for
inclusion in the slate of nominees to be proposed by the Board of
Directors to the shareholders for election to the Board of
Directors, and provided such incumbent director has not notified
the committee that he or she will be resigning or that he or she
does not intend to stand for re-election to the Board of Directors,
then, in the case of an election to be held at an annual meeting of
shareholders, the corporate governance and nominating committee
will recommend the slate of nominees to the Board of Directors at
least thirty (30) days prior to the latest date required by the
provisions of Sections 2.14 (advance notice of shareholder
business) and 2.15 (advance notice of director nominations) of the
Bylaws of the Corporation (as such provisions may be amended from
time to time) for shareholders to submit nominations for directors
at such annual meeting, or in the case of an election to be held at
a special meeting of shareholders, at least ten (10) days prior to
the latest date required by the provisions of Sections 2.14 and
2.15 of the Bylaws for shareholders to submit nominations for
directors at such special meeting.
Section 6. |
Compensation
Committee. |
The Board of Directors of the Corporation shall establish a
compensation committee whose principal duties will be to review
employee compensation policies and programs as well as the
compensation of the chief executive officer and other executive
officers of the Corporation, to recommend to the Board of Directors
a compensation program for outside members of the Board of
Directors, as well as such other duties and responsibilities
delegated to it by the Board of Directors and specified for it
under applicable law and Exchange Governance Rules.
Section 7. |
Election of
Directors. |
Elections of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
Section 8. |
Cumulative
Voting. |
No shareholder will be permitted to cumulate votes at any election
of directors.
Section 9. |
Number of
Directors. |
The number of directors that constitute the whole Board of
Directors shall be fixed exclusively in the manner designated in
the Bylaws of the Corporation.
Section 10. |
Initial Board of
Directors. |
The initial Board of Directors shall consist of one (1)
member. The name and address of the initial member of the
Board of Directors are as follows:
NAME |
ADDRESS |
Amos
Kohn |
1421
McCarthy Blvd., Milpitas, CA 95035 |
Mr. Kohn shall serve as the director of the Corporation until the
first annual meeting of the shareholders or until his successor
shall have been elected and qualified.
ARTICLE VII
Section 1. |
Limitation of
Personal Liability. |
To the fullest extent permitted by the NRS as the same exists or as
may hereafter be amended, a director of the Corporation shall not
be personally liable to the Corporation or its shareholders for
monetary damages for breach of fiduciary duty as a director. If the
NRS is amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of
a director of the Corporation shall be eliminated to the fullest
extent permitted by the NRS, as so amended.
Section 2. |
Indemnification. |
The Corporation may indemnify to the fullest extent permitted by
law any person made or threatened to be made a party to an action
or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that he, she, his or her
testator or intestate is or was a director, officer, employee or
agent at the request of the Corporation or any predecessor to the
Corporation or serves or served at any other enterprise as a
director, officer, employee or agent at the request of the
Corporation or any predecessor to the Corporation.
Section 3. |
Inconsistent
Provisions. |
Neither any amendment or repeal of any Section of this Article VII,
nor the adoption of any provision of this Articles of Incorporation
inconsistent with this Article VII, shall eliminate or reduce the
effect of this Article VII, in respect of any matter occurring, or
any action or proceeding accruing or arising or that, but for this
Article VII, would accrue or arise, prior to such amendment, repeal
or adoption of an inconsistent provision.
ARTICLE VIII
Meetings of shareholders may be held within or without the State of
Nevada, as the Bylaws may provide. The books of the Corporation may
be kept (subject to any provision contained in the statutes)
outside of the State of Nevada at such place or places as may be
designated from time to time by the Board of Directors or in the
Bylaws of the Corporation.
ARTICLE IX
Section 1. |
Special
Meetings. |
Unless otherwise required by law, special meetings of the
shareholders of the Corporation, for any purpose or purposes, may
be called only by (i) the Board of Directors of the Corporation,
(ii) the Chairman of the Board of Directors of the Corporation,
(iii) the Chief Executive Officer (or, in the absence of a Chief
Executive Officer, the President) of the Corporation, or (iv) a
holder, or group of holders, of Common Stock holding more than
twenty percent (20%) of the total voting power of the outstanding
shares of capital stock of the Corporation then entitled to
vote.
Section 2. |
Action Without a
Meeting. |
Any action required or permitted to be taken by the shareholders of
the Corporation may, but need not, be effected at a duly called
annual or special meeting of shareholders of the Corporation; any
such action may also be effected by any consent in writing by such
shareholders pursuant to Section 78.315 of the NRS.
ARTICLE X
The Corporation reserves the right to amend or repeal any provision
contained in this Articles of Incorporation in the manner
prescribed by the laws of the State of Nevada and all rights
conferred upon shareholders are granted subject to this
reservation; provided, however, that notwithstanding any other
provision of this Articles of Incorporation, or any provision of
law that might otherwise permit a lesser vote or no vote, but in
addition to any vote of the holders of any class or series of the
stock of the Corporation, and, as applicable, such other approvals
of the Board of Directors of the Corporation, as are required by
law or by this Articles of Incorporation: (i) the unanimous consent
of Board of Directors then in office, and the affirmative vote of
the holders at least a majority of the voting power of the issued
and outstanding shares of capital stock of the Corporation then
entitled to vote, shall be required to amend or repeal Article IV,
Section 2 or this clause (i) of Article X; (ii) the affirmative
vote of the holders of the greater of: (A) a majority of the voting
power of the issued and outstanding shares of capital stock of the
Corporation then entitled to vote thereon, or (B) sixty percent
(60%) of the voting power of the shares of capital stock present in
person or represented by proxy at the shareholder meeting and
entitled to vote thereon, shall be required to amend or repeal
Article IV, Section 3, or this clause (ii) of Article X; (iii) the
consent of a majority of the members of the Board then in office,
and the affirmative vote of the holders at least sixty-six and
two-thirds percent (66 2/3%) of the voting power of the issued and
outstanding shares of capital stock of the Corporation then
entitled to vote shall be required to amend or repeal Article IV,
Section 4, or this clause (iii) of Article X; (iv) the unanimous
consent of the Board of Directors then in office and the consent of
at least sixty-six and two-thirds percent (66 2/3%) of the voting
power of the issued and outstanding shares of capital stock of the
Corporation shall be required to amend or repeal Article VI,
Section 3, 4, 5, or 6, or this clause (iv) of Article X; and (v)
the consent of at least two-thirds of the members of the Board of
Directors then in office and the affirmative vote of the holders of
at least a majority of the voting power of the issued and
outstanding shares of capital stock of the Corporation then
entitled to vote shall be required to amend or repeal this clause
(v) of Article X.
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named,
for the purpose of forming a corporation pursuant to the NRS of the
State of Nevada, do make this Articles of Incorporation, hereby
declaring and certifying that this is my act and deed and the facts
herein stated are true, and accordingly have hereunto set my hands
this __th day of
October, 2022.
|
|
|
|
Amos
Kohn, Chief Executive Officer |
|
|
1421
McCarthy Blvd. |
|
|
Milpitas,
CA 95035 |
|
ANNEX B
BYLAWS
OF
TURNONGREEN, INC.
a Nevada Corporation
Effective as of October __, 2022
TABLE OF CONTENTS
|
|
Page |
Article I — Corporate Offices |
1 |
1.1 |
Registered
Office |
1 |
1.2 |
Other
Offices |
1 |
|
|
|
Article II — Meetings of Shareholders |
1 |
2.1 |
Place of
Meetings |
1 |
2.2 |
Annual
Meeting |
1 |
2.3 |
Special
Meeting |
1 |
2.4 |
Notice of
Shareholders’ Meetings |
1 |
2.5 |
Manner of
Giving Notice; Affidavit of Notice |
2 |
2.6 |
Quorum |
2 |
2.7 |
Adjourned
Meeting; Notice |
2 |
2.8 |
Administration
of the Meeting |
3 |
2.9 |
Voting |
3 |
2.10 |
No Shareholder
Action by Written Consent without a Meeting |
3 |
2.11 |
Record Date
For Shareholder Notice; Voting; Giving Consents |
4 |
2.12 |
Proxies |
4 |
2.13 |
List of
Shareholders Entitled to Vote |
4 |
2.14 |
Advance Notice
of Shareholder Business |
5 |
2.15 |
Advance Notice
of Director Nominations |
5 |
|
|
|
Article III — Directors |
6 |
3.1 |
Powers |
6 |
3.2 |
Number of
Directors |
6 |
3.3 |
Election,
Qualification and Term of Office of Directors |
6 |
3.4 |
Resignation
and Vacancies |
6 |
3.5 |
Place of
Meetings; Meetings by Telephone |
7 |
3.6 |
Regular
Meetings |
7 |
3.7 |
Special
Meetings; Notice |
7 |
3.8 |
Quorum |
7 |
3.9 |
Waiver of
Notice |
7 |
3.10 |
Board Action
by Written Consent without a Meeting |
7 |
3.11 |
Adjourned
Meeting; Notice |
8 |
3.12 |
Fees and
Compensation of Directors |
8 |
3.13 |
Removal of
Directors |
8 |
3.14 |
Corporate
Governance Compliance |
8 |
|
|
|
Article IV — Committees |
8 |
4.1 |
Committees of
Directors |
8 |
4.2 |
Committee
Minutes |
8 |
4.3 |
Meetings and
Action of Committees |
8 |
4.4 |
Audit
Committee |
9 |
4.5 |
Corporate
Governance and Nominating Committee |
9 |
4.6 |
Compensation
Committee |
9 |
|
|
|
Article V — Officers |
9 |
5.1 |
Officers |
9 |
5.2 |
Appointment of
Officers |
9 |
5.3 |
Subordinate
Officers |
9 |
5.4 |
Removal and
Resignation of Officers |
10 |
5.5 |
Vacancies in
Offices |
10 |
5.6 |
Chairman of
the Board |
10 |
5.7 |
Chief Executive Officer. |
10 |
5.8 |
Presidents |
10 |
5.9 |
Vice
Presidents |
10 |
5.10 |
Secretary |
10 |
5.11 |
Chief
Financial Officer |
11 |
5.12 |
Treasurer |
11 |
5.13 |
Assistant
Secretary |
11 |
5.14 |
Assistant
Treasurer |
11 |
5.15 |
Representation
of Shares of Other Corporations |
11 |
5.16 |
Authority and
Duties of Officers |
12 |
|
|
|
Article VI — Records and Reports |
12 |
6.1 |
Maintenance
and Inspection of Records |
12 |
6.2 |
Inspection by
Directors |
12 |
|
|
|
Article VII — General Matters |
12 |
7.1 |
Checks;
Drafts; Evidences of Indebtedness |
12 |
7.2 |
Execution of
Corporate Contracts and Instruments |
12 |
7.3 |
Stock
Certificates; Partly Paid Shares |
12 |
7.4 |
Special
Designation On Certificates |
13 |
7.5 |
Lost
Certificates |
13 |
7.6 |
Construction;
Definitions |
13 |
7.7 |
Dividends |
13 |
7.8 |
Fiscal
Year |
13 |
7.9 |
Seal |
13 |
7.10 |
Transfer of
Stock |
13 |
7.11 |
Stock Transfer
Agreements |
13 |
7.12 |
Registered
Shareholders |
13 |
7.13 |
Waiver of
Notice |
14 |
7.14 |
Charitable
Foundation |
14 |
7.15 |
Forum
Selection |
14 |
|
|
|
Article VIII — Notice by Electronic
Transmission |
14 |
8.1 |
Notice by
Electronic Transmission |
14 |
8.2 |
Definition of
Electronic Transmission |
15 |
8.3 |
Inapplicability |
15 |
|
|
|
Article IX — Indemnification of Directors and
Officers |
15 |
9.1 |
Power to
Indemnify in Actions, Suits or Proceedings Other Than Those by or
in the Right of the Corporation |
15 |
9.2 |
Power to
Indemnify in Actions, Suits or Proceedings by or in the Right of
the Corporation |
15 |
9.3 |
Authorization
of Indemnification |
16 |
9.4 |
Good Faith
Defined |
16 |
9.5 |
Indemnification by A Court |
16 |
9.6 |
Expenses
Payable In Advance |
16 |
9.7 |
Non-Exclusivity of Indemnification and Advancement of
Expenses. |
16 |
9.8 |
Insurance |
17 |
9.9 |
Certain
Definitions |
17 |
9.10 |
Survival of
Indemnification and Advancement of Expenses. |
17 |
9.11 |
Limitation On
Indemnification |
17 |
9.12 |
Indemnification of Employees and Agents |
17 |
9.13 |
Effect of
Amendment or Repeal |
17 |
|
|
|
Article X — Amendments |
18 |
BYLAWS
OF
TURNONGREEN, INC.
ARTICLE I
CORPORATE OFFICES
1.1 Registered
Office. The registered office of TurnOnGreen, Inc. (the
“Corporation”) shall be fixed in the Corporation’s Articles
of Incorporation, as the same may be amended and/or restated from
time to time (as so amended and/or restated, the
“Articles”).
1.2 Other Offices.
The Corporation’s Board of Directors (the “Board”) may at
any time establish other offices at any place or places where the
Corporation is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
2.1 Place of
Meetings. Meetings of shareholders shall be held at any place
within or outside the State of Nevada as designated by the Board.
The Board may, in its sole discretion, determine that a meeting of
shareholders shall not be held at any place, but may instead be
held solely by means of remote communication as authorized by
Section 78.315 of the Nevada Revised Statutes (the “NRS”).
In the absence of any such designation or determination,
shareholders’ meetings shall be held at the Corporation’s principal
executive office.
2.2 Annual Meeting.
The annual meeting of shareholders shall be held each year on a
date and at a time designated by the Board. At the annual meeting,
directors shall be elected and any other proper business may be
transacted.
2.3 Special
Meeting. Unless otherwise required by law or the Articles,
special meetings of the shareholders may be called at any time, for
any purpose or purposes, only by (i) the Board, (ii) the Chairman
of the Board, (iii) the chief executive officer of the Corporation,
or (iv) holders of more than twenty percent (20%) of the total
voting power of the outstanding shares of capital stock of the
Corporation then entitled to vote.
If any
person(s) other than the Board calls a special meeting, the request
shall:
(a) be in writing;
(b) specify the general
nature of the business proposed to be transacted; and
(c) be delivered
personally or sent by registered mail or by facsimile transmission
to the secretary of the Corporation.
Upon receipt of such a request, the Board shall determine the date,
time and place of such special meeting, which must be scheduled to
be held on a date that is within ninety (90) days of receipt by the
secretary of the request therefor, and the secretary of the
Corporation shall prepare a proper notice thereof. No business may
be transacted at such special meeting other than the business
specified in the notice to shareholders of such meeting.
2.4 Notice of
Shareholders’ Meetings. All notices of meetings of shareholders
shall be sent or otherwise given in accordance with either Section
2.5 or Section 8.1 of these bylaws not less than ten (10) nor more
than sixty (60) days before the date of the meeting to each
shareholder entitled to vote at such meeting, except as otherwise
required by applicable law. The notice shall specify the place, if
any, date and hour of the meeting, the means of remote
communication, if any, by which shareholders 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. Any previously scheduled meeting of
shareholders may be postponed, and, unless the Articles provides
otherwise, any special meeting of the shareholders may be cancelled
by resolution duly adopted by a majority of the Board members then
in office upon public notice given prior to the date previously
scheduled for such meeting of shareholders.
Whenever notice is required to be given, under the NRS, the
Articles or these bylaws, to any person with whom communication is
unlawful, the giving of such notice to such person shall not be
required and there shall be no duty to apply to any governmental
authority or agency for a license or permit to give such notice to
such person. Any action or meeting which shall be taken or held
without notice to any such person with whom communication is
unlawful shall have the same force and effect as if such notice had
been duly given. In the event that the action taken by the
Corporation is such as to require the filing of a certificate with
the Secretary of State of Nevada, the certificate shall state, if
such is the fact and if notice is required, that notice was given
to all persons entitled to receive notice except such persons with
whom communication is unlawful.
Whenever notice is required to be given, under any provision of the
NRS, the Articles or these bylaws, to any shareholder to whom (a)
notice of two (2) consecutive annual meetings, or (b) all, and at
least two (2) payments (if sent by first-class mail) of dividends
or interest on securities during a twelve (12) month period, have
been mailed addressed to such person at such person’s address as
shown on the records of the Corporation and have been returned
undeliverable, the giving of such notice to such person shall not
be required. Any action or meeting which shall be taken or held
without notice to such person shall have the same force and effect
as if such notice had been duly given. If any such person shall
deliver to the Corporation a written notice setting forth such
person’s then current address, the requirement that notice be given
to such person shall be reinstated. In the event that the action
taken by the Corporation is such as to require the filing of a
certificate with the Secretary of State of Nevada, the certificate
need not state that notice was not given to persons to whom notice
was not required to be given pursuant to Section 78.370 of the
NRS.
The exception in subsection (a) of the above paragraph to the
requirement that notice be given shall not be applicable to any
notice returned as undeliverable if the notice was given by
electronic transmission.
2.5 Manner of Giving
Notice; Affidavit of Notice. Notice of any meeting of
shareholders shall be given:
(a) if mailed, when
deposited in the United States mail, postage prepaid, directed to
the shareholder at his or her address as it appears on the
Corporation’s records;
(b) if electronically
transmitted, as provided in Section 8.1 of these bylaws; or
(c) otherwise, when
delivered.
An
affidavit of the secretary or an assistant secretary of the
Corporation or of the transfer agent or any other agent of the
Corporation that the notice has been given shall, in the absence of
fraud, be prima facie evidence of the facts stated
therein.
Notice may be
waived in accordance with Section 7.13 of these bylaws.
2.6 Quorum. Unless
otherwise provided in the Articles or required by law, shareholders
representing a majority of the voting power of the issued and
outstanding capital stock of the Corporation, present in person or
represented by proxy, shall constitute a quorum for the transaction
of business at all meetings of the shareholders. If such quorum is
not present or represented at any meeting of the shareholders, then
the chairman of the meeting, or the shareholders representing a
majority of the voting power of the capital stock at the meeting,
present in person or represented by proxy, shall have power to
adjourn the meeting from time to time until a quorum is present or
represented. At such adjourned meeting at which a quorum is present
or represented, any business may be transacted that might have been
transacted at the meeting as originally noticed. The shareholders
present at a duly called meeting at which quorum is present may
continue to transact business until adjournment, notwithstanding
the withdrawal of enough shareholders to leave less than a
quorum.
2.7 Adjourned Meeting;
Notice. When a meeting is adjourned to another time or place,
unless these bylaws otherwise require, notice need not be given of
the adjourned meeting if the time, place if any thereof, and the
means of remote communications if any by which shareholders and
proxy holders may be deemed to be present in person and vote at
such adjourned meeting are announced at the meeting at which the
adjournment is taken. At the continuation of the adjourned meeting,
the Corporation may transact any business that might have been
transacted at the original meeting. If the adjournment is for more
than thirty (30) days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each shareholder of record entitled to
vote at the meeting in accordance with the provisions of Section
2.4 and 2.5 of these bylaws.
2.8 Administration of
the Meeting. Meetings of shareholders shall be presided over by
the chairman of the Board or, in the absence thereof, by such
person as the chairman of the Board shall appoint, or, in the
absence thereof or in the event that the chairman shall fail to
make such appointment, any officer of the Corporation elected by
the Board. In the absence of the secretary of the Corporation, the
secretary of the meeting shall be such person as the chairman of
the meeting appoints.
The Board shall, in advance of any meeting of shareholders, appoint
one (1) or more inspector(s), who may include individual(s) who
serve the Corporation in other capacities, including without
limitation as officers, employees or agents, to act at the meeting
of shareholders and make a written report thereof. The Board may
designate one (1) or more persons as alternate inspector(s) to
replace any inspector, who fails to act. If no inspector or
alternate has been appointed or is able to act at a meeting of
shareholders, the chairman of the meeting shall appoint one (1) or
more inspector(s) to act at the meeting. Each inspector, before
discharging his or her duties, shall take and sign an oath to
faithfully execute the duties of inspector with strict impartiality
and according to the best of his or her ability. The inspector(s)
or alternate(s) shall have the duties prescribed pursuant to
applicable law and/or regulations.
The Board shall be entitled to make such rules or regulations for
the conduct of meetings of shareholders as it shall deem necessary,
appropriate or convenient. Subject to such rules and regulations,
if any, the chairman of the meeting shall have the right and
authority to prescribe such rules, regulations and procedures and
to do all acts as, in the judgment of such chairman, are necessary,
appropriate or convenient for the proper conduct of the meeting,
including without limitation establishing an agenda of business of
the meeting, rules or regulations to maintain order, restrictions
on entry to the meeting after the time fixed for commencement
thereof and the fixing of the date and time of the opening and
closing of the polls for each matter upon which the shareholders
will vote at a meeting (and shall announce such at the
meeting).
2.9 Voting. The
shareholders entitled to vote at any meeting of shareholders shall
be determined in accordance with the provisions of Section 2.11 of
these bylaws, subject to Section 78.352 (relating to voting rights
of fiduciaries, pledgors and joint owners of stock) and Section
78.365 (relating to voting trusts and other voting agreements) of
the NRS.
Except as otherwise provided in the provisions of Section 78.350 of
the NRS (relating to the fixing of a date for determination of
shareholders of record) or these bylaws, each shareholder shall be
entitled to that number of votes for each share of capital stock
held by such shareholder as set forth in the Articles.
In
all matters, other than the election of directors and except as
otherwise required by law, the Articles or these bylaws, the
affirmative vote of a majority of the voting power of the shares
present or represented by proxy at the meeting and entitled to vote
on the subject matter shall be the act of the shareholders.
Directors shall be elected by a plurality of the voting power of
the shares present in person or represented by proxy at the meeting
and entitled to vote on the election of directors.
The shareholders of the Corporation shall not have the right to
cumulate their votes for the election of directors of the
Corporation.
2.10 Shareholder Action
by Written Consent without a Meeting. Any action required or
permitted to be taken at any Annual or Special Meeting of
Shareholders of the Corporation may be taken without a meeting,
without prior notice and without a vote, if a consent or consents
in writing, setting forth the action so taken, shall be signed by
the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon
were present and voted and shall be delivered to the Corporation by
delivery to its registered office in the State of Nevada, its
principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of
meetings of the shareholders are recorded. Delivery made to the
Corporation’s registered office shall be by hand or by certified or
registered mail, return receipt requested. Every written consent
shall bear the date of signature of each shareholder who signs the
consent and no written consent shall be effective to take the
corporate action referred to therein unless, within sixty (60) days
of the earliest dated consent delivered in the manner required by
this Section 2.10 to the Corporation, written consents signed by a
sufficient number of holders to take action are delivered to the
Corporation by delivery to its registered office in the State of
Nevada, its principal place of business, or an officer or agent of
the Corporation having custody of the book in which proceedings of
meetings of the shareholders are recorded. Any copy, facsimile or
other reliable reproduction of a consent in writing may be
substituted or used in lieu of the original writing for any and all
purposes for which the original writing could be used, provided
that such copy, facsimile or other reproduction shall be a complete
reproduction of the entire original writing. Prompt notice of the
taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those shareholders who
have not consented in writing and who, if the action had been taken
at a meeting, would have been entitled to notice of the meeting if
the record date for such meeting had been the date that written
consents signed by a sufficient number of holders to take the
action were delivered to the Corporation as provided above in this
Section 2.10.
Any action required or permitted to be taken by the shareholders of
the Corporation (if the Corporation has more than one shareholder
at such time) must be effected at a duly called annual or special
meeting of shareholders of the Corporation and may not be effected
by any consent in writing by such shareholders.
2.11 Record Date for
Shareholder Notice; Voting; Giving Consents. In order that the
Corporation may determine the shareholders entitled to notice of or
to vote at any meeting of shareholders or any adjournment thereof,
or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of
stock or for the purpose of any other lawful action, the Board may
fix, in advance, a record date, which record date shall not precede
the date on which the resolution fixing the record date is adopted
and which shall not be more than sixty (60) nor less than ten (10)
days before the date of such meeting, nor more than sixty (60) days
prior to any other such action.
If the Board
does not fix a record date in accordance with these bylaws and
applicable law:
(a) The record date for
determining shareholders entitled to notice of or to vote at a
meeting of shareholders 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.
(b) The record date for
determining shareholders entitled to consent to corporate action in
writing without a meeting, when no prior action by the Board is
necessary, shall be the first day on which a signed written consent
setting forth the action taken or proposed to be taken is delivered
to the Corporation.
(c) The record date for
determining shareholders for any other purpose shall be at the
close of business on the day on which the Board adopts the
resolution relating thereto.
A
determination of shareholders of record entitled to notice of or to
vote at a meeting of shareholders shall apply to any adjournment of
the meeting; provided, however, that the Board may fix a new record
date for the adjourned meeting.
2.12 Proxies. Each
shareholder entitled to vote at a meeting of shareholders may
authorize another person or persons to act for such shareholder by
proxy authorized by an instrument in writing or by a transmission
permitted by law and filed with the secretary of the Corporation,
but no such proxy shall be voted or acted upon after three (3)
years from its date, unless the proxy provides for a longer period.
A shareholder may also authorize another person or persons to act
for him, her or it as proxy in the manner(s) provided under Section
78.355 of the NRS or as otherwise provided under Nevada law. The
revocability of a proxy that states on its face that it is
irrevocable shall be governed by the provisions of Section 78.355
of the NRS.
2.13 List of
Shareholders Entitled to Vote. The officer who has charge of
the stock ledger of the Corporation shall prepare and make, at
least ten (10) days before every meeting of shareholders, a
complete list of the shareholders entitled to vote at the meeting,
arranged in alphabetical order, and showing the address of each
shareholder and the number of shares registered in the name of each
shareholder. The Corporation shall not be required to include
electronic mail addresses or other electronic contact information
on such list. Such list shall be open to the examination of any
shareholder, for any purpose germane to the meeting for a period of
at least ten (10) days prior to the meeting: (i) on a reasonably
accessible electronic network, provided that the information
required to gain access to such list is provided with the notice of
the meeting, or (ii) during ordinary business hours, at the
Corporation’s principal place of business.
In
the event that the Corporation determines to make the list
available on an electronic network, the Corporation may take
reasonable steps to ensure that such information is available only
to shareholders of the Corporation. If the meeting is to be held at
a place, then the list shall be produced and kept at the time and
place of the meeting during the whole time thereof, and may be
inspected by any shareholder who is present. If the meeting is to
be held solely by means of remote communication, then the list
shall also be open to the examination of any shareholder during the
whole time of the meeting on a reasonably accessible electronic
network, and the information required to access such list shall be
provided with the notice of the meeting.
2.14 Advance Notice of
Shareholder Business. Only such business shall be conducted as
shall have been properly brought before a meeting of the
shareholders of the Corporation. To be properly brought before an
annual meeting, business must be (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of
the Board, (b) otherwise properly brought before the meeting by or
at the direction of the Board, or (c) a proper matter for
shareholder action under the NRS that has been properly brought
before the meeting by a shareholder (i) who is a shareholder of
record on the date of the giving of the notice provided for in this
Section 2.14 and on the record date for the determination of
shareholders entitled to vote at such annual meeting and (ii) who
complies with the notice procedures set forth in this Section 2.14.
For such business to be considered properly brought before the
meeting by a shareholder such shareholder must, in addition to any
other applicable requirements, have given timely notice in proper
form of such shareholder’s intent to bring such business before
such meeting. To be timely, such shareholder’s notice must be
delivered to or mailed and received by the secretary of the
Corporation at the principal executive offices of the Corporation
not later than the close of business on the 90th day, nor earlier
than the close of business on the 120th day, prior to
the anniversary date of the immediately preceding annual meeting;
provided, however, that in the event that no annual meeting was
held in the previous year or the annual meeting is called for a
date that is not within thirty (30) days before or after such
anniversary date, notice by the shareholder to be timely must be so
received not later than the close of business on the tenth (10th)
day following the day on which such notice of the date of the
meeting was mailed or public disclosure of the date of the meeting
was made, whichever occurs first.
To
be in proper form, a shareholder’s notice to the secretary shall be
in writing and shall set forth:
(a) the name and record
address of the shareholder who intends to propose the business and
the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such
shareholder;
(b) a representation that
the shareholder 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 introduce the business specified in the
notice;
(c) a brief description of
the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting;
(d) any material interest
of the shareholder in such business; and
(e) any other information
that is required to be provided by the shareholder pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”).
Notwithstanding the foregoing, in order to include information with
respect to a shareholder proposal in the proxy statement and form
of proxy for a shareholder’s meeting, shareholders must provide
notice as required by, and otherwise comply with the requirements
of, the Exchange Act and the regulations promulgated
thereunder.
No
business shall be conducted at the annual meeting of shareholders
except business brought before the annual meeting in accordance
with the procedures set forth in this Section 2.14. The chairman of
the meeting may refuse to acknowledge the proposal of any business
not made in compliance with the foregoing procedure.
2.15 Advance Notice of
Director Nominations. Only persons who are nominated in
accordance with the following procedures shall be eligible for
election as directors of the Corporation, except as may be
otherwise provided in the Articles with respect to the right of
holders of Preferred Stock of the Corporation to nominate and elect
a specified number of directors. To be properly brought before an
annual meeting of shareholders, or any special meeting of
shareholders called for the purpose of electing directors,
nominations for the election of director must be (a) specified in
the notice of meeting (or any supplement thereto), (b) made by or
at the direction of the Board (or any duly authorized committee
thereof) or (c) made by any shareholder of the Corporation (i) who
is a shareholder of record on the date of the giving of the notice
provided for in this Section 2.15 and on the record date for the
determination of shareholders entitled to vote at such meeting and
(ii) who complies with the notice procedures set forth in this
Section 2.15.
In
addition to any other applicable requirements, for a nomination to
be made by a shareholder, such shareholder must have given timely
notice thereof in proper written form to the secretary of the
Corporation. To be timely, a shareholder’s notice to the secretary
must be delivered to or mailed and received at the principal
executive offices of the Corporation, in the case of an annual
meeting, in accordance with the provisions set forth in Section
2.14, and, in the case of a special meeting of shareholders called
for the purpose of electing directors, not later than the close of
business on the tenth (10th) day following the day on
which notice of the date of the special meeting was mailed or
public disclosure of the date of the special meeting was made,
whichever first occurs.
To be in
proper written form, a shareholder’s notice to the secretary must
set forth:
(a) as to each person whom
the shareholder proposes to nominate for election as a director (i)
the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the person,
(iii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by the
person, (iv) a description of all arrangements or understandings
between the shareholder 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 shareholder, and (v) any other
information relating to such person that is required to be
disclosed in solicitations of proxies for elections of directors,
or is otherwise required, in each case pursuant to Regulation 14A
under the Exchange Act (including without limitation such person’s
written consent to being named in the proxy statement, if any, as a
nominee and to serving as a director if elected); and
(b) as to such shareholder
giving notice, the information required to be provided pursuant to
Section 2.14.
Subject to the rights of any holders of Preferred Stock of the
Corporation, no person shall be eligible for election as a director
of the Corporation unless nominated in accordance with the
procedures set forth in this Section 2.15. If the chairman of the
meeting properly determines that a nomination was not made in
accordance with the foregoing procedures, the chairman shall
declare to the meeting that the nomination was defective and such
defective nomination shall be disregarded.
ARTICLE III
DIRECTORS
3.1 Powers. Subject
to the provisions of the NRS and any limitations in the Articles,
the business and affairs of the Corporation shall be managed and
all corporate powers shall be exercised by or under the direction
of the Board.
3.2 Number of
Directors. Subject to the rights of the holders of any series
of Preferred Stock to elect directors under specified
circumstances, the authorized number of directors shall be
determined from time to time by resolution of the Board, provided
the Board shall consist of at least three members. No reduction of
the authorized number of directors shall have the effect of
removing any director before that director’s term of office
expires.
3.3 Election,
Qualification and Term of Office of Directors. Except as
provided in Section 3.4 and Section 3.13 of these bylaws, directors
shall be elected at each annual meeting of shareholders to hold
office until the next annual meeting. Directors need not be
shareholders unless so required by the Articles or these bylaws.
The Articles or these bylaws may prescribe other qualifications for
directors. Each director, including a director elected to fill a
vacancy, shall hold office until such director’s successor is
elected and qualified or until such director’s earlier death,
resignation or removal.
All elections of directors shall be by written ballot, unless
otherwise provided in the Articles. If authorized by the Board,
such requirement of a written ballot shall be satisfied by a ballot
submitted by electronic transmission, provided that any such
electronic transmission must be either set forth or be submitted
with information from which it can be determined that the
electronic transmission was authorized.
3.4 Resignation and
Vacancies. Any director may resign at any time upon written
notice or by electronic transmission to the chairman of the Board,
with a copy to the secretary of the Corporation.
Subject to the rights of the holders of any series of Preferred
Stock of the Corporation then outstanding and unless the Board
otherwise determines, newly created directorships resulting from
any increase in the authorized number of directors, or any
vacancies on the Board resulting from the death, resignation,
retirement, disqualification, removal from office or other cause
shall, unless otherwise required by law, be filled by the
affirmative vote of a majority of the remaining directors then in
office, even though less than a quorum of the Board, or by a sole
remaining director. When one or more directors resigns and the
resignation is effective at a future date, a majority of the
directors then in office, including those who have so resigned,
shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall
become effective, and each director so chosen shall hold office as
provided in this section in the filling of other vacancies.
3.5 Place of Meetings;
Meetings by Telephone. The Board may hold meetings, both
regular and special, either within or outside the State of Nevada.
Unless otherwise restricted by the Articles or these bylaws,
members of the Board, or any committee designated by the Board, may
participate in a meeting of the Board, or any 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 such participation in a meeting shall constitute
presence in person at the meeting.
3.6 Regular
Meetings. Regular meetings of the Board may be held with at
least two (2) business days prior notice at such time and at such
place as shall from time to time be determined by the Board.
3.7 Special Meetings;
Notice. Special meetings of the Board for any purpose or
purposes may be called at any time by (i) the Board of Directors of
the Corporation, (ii) the Chairman of the Board of Directors of the
Corporation, (iii) the Chief Executive Officer (or, in the absence
of a Chief Executive Officer, the President) of the Corporation, or
(iv) a holder, or group of holders, of Common Stock holding more
than twenty percent (20%) of the total voting power of the
outstanding shares of capital stock of the Corporation then
entitled to vote. The person(s) authorized to call special meetings
of the Board may fix the place and time of the meeting.
Notice of the
time and place of special meetings shall be:
(a) delivered personally
by hand, by courier or by telephone;
(b) sent by United States
first-class mail, postage prepaid;
(c) sent by facsimile;
or
(d) sent by electronic
mail,
directed to each director at that director’s address, telephone
number, facsimile number or electronic mail address, as the case
may be, as shown on the Corporation’s records.
If
the notice is (i) delivered personally by hand, by courier or by
telephone, (ii) sent by facsimile or (iii) sent by electronic mail,
it shall be delivered or sent at least twenty-four (24) hours
before the time of the holding of the meeting. If the notice is
sent by United States mail, it shall be deposited in the United
States mail at least four days before the time of the holding of
the meeting. Any oral notice may be communicated either to the
director or to a person at the office of the director who the
person giving notice has reason to believe will promptly
communicate such notice to the director. The notice need not
specify the place of the meeting if the meeting is to be held at
the Corporation’s principal executive office nor the purpose of the
meeting.
3.8 Quorum. Except
as otherwise required by law or the Articles, at all meetings of
the Board, a majority of the authorized number of directors (as
determined pursuant to Section 3.2 of these bylaws) shall
constitute a quorum for the transaction of business, except to
adjourn as provided in Section 3.11 of these bylaws. The vote of a
majority of the directors present at any meeting at which a quorum
is present shall be the act of the Board, except as may be
otherwise specifically provided by statute, the Articles or these
bylaws.
3.9 Waiver of
Notice. Whenever notice is required to be given under any
provisions of the NRS, the Articles or these bylaws, a written
waiver thereof, signed by the person entitled to notice, or a
waiver by electronic transmission by the person entitled to notice,
whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the
person attends a meeting solely for the express purpose of
objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the directors, or members of
a committee of directors, need be specified in any written waiver
of notice or any waiver by electronic transmission unless so
required by the Articles or these bylaws.
3.10 Board Action by
Written Consent without a Meeting. Unless otherwise restricted
by the Articles or these bylaws, 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 all members of the Board
or 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 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.
3.11 Adjourned Meeting;
Notice. If a quorum is not present at any meeting of the Board,
then a majority of the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement
at the meeting, until a quorum is present.
3.12 Fees and
Compensation of Directors. Unless otherwise restricted by the
Articles or these bylaws, the Board shall have the authority to fix
the compensation of directors.
3.13 Removal of
Directors. Subject to the rights of the holders of any series
of Preferred Stock then outstanding, any director or the entire
Board may be removed from office at any time, with or without
cause, by the affirmative vote of the holders of at least a
majority of the voting power of the issued and outstanding shares
of capital stock of the Corporation then entitled to vote in the
election of directors.
3.14 Corporate
Governance Compliance. Without otherwise limiting the powers of
the Board set forth in Section 3.1 and provided that shares of
capital stock of the Corporation are listed for trading on either
the NASDAQ Stock Market (“NASDAQ”) or the New York Stock
Exchange or the NYSE American (in either case, “NYSE”), the
Corporation shall comply with the corporate governance rules and
requirements of the NASDAQ or the NYSE, as applicable.
ARTICLE IV
COMMITTEES
4.1 Committees of
Directors. The Board may designate one or more committees, each
committee to consist of one or more of the directors of the
Corporation. 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 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 such member or members constitute a quorum,
may unanimously 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 provided in the resolution of the
Board or in these bylaws, shall have and may exercise such lawfully
delegable powers and duties as the Board may confer. Each committee
will comply with all applicable provisions of: the Sarbanes-Oxley
Act of 2002, the rules and regulations of the Securities and
Exchange Commission, and the rules and requirements of NASDAQ or
NYSE, as applicable, and will have the right to retain independent
legal counsel and other advisers at the Corporation’s expense.
4.2 Committee
Minutes. Each committee shall keep regular minutes of its
meetings and report to the Board when required.
4.3 Meetings and Action
of Committees. Meetings and actions of committees shall be
governed by, and held and taken in accordance with, the provisions
of:
(a) Section 3.5 (place of
meetings and meetings by telephone);
(b) Section 3.6 (regular
meetings);
(c) Section 3.7 (special
meetings and notice);
(d) Section 3.8
(quorum);
(e) Section 3.9 (waiver of
notice);
(f) Section 3.10 (action
without a meeting); and
(g) Section 3.11
(adjournment and notice of adjournment),
with such
changes in the context of those bylaws as are necessary to
substitute the committee and its members for the Board and its
members.
Notwithstanding the foregoing:
(a) the time of regular
meetings of committees may be determined either by resolution of
the Board or by resolution of the committee;
(b) special meetings of
committees may also be called by resolution of the Board; and
(c) notice of special
meetings of committees shall also be given to all alternate
members, who shall have the right to attend all meetings of the
committee. The Board may adopt rules for the government of any
committee not inconsistent with the provisions of these bylaws.
4.4 Audit
Committee. The Board shall establish an Audit Committee whose
principal purpose will be to oversee the Corporation’s and its
subsidiaries’ accounting and financial reporting processes,
internal systems of control, independent auditor relationships and
audits of consolidated financial statements of the Corporation and
its subsidiaries. The Audit Committee will also determine the
appointment of the independent auditors of the Corporation and any
change in such appointment and ensure the independence of the
Corporation’s auditors. In addition, the Audit Committee will
assume such other duties and responsibilities as the Board may
confer upon the committee from time to time.
4.5 Corporate
Governance and Nominating Committee. The Board shall establish
a Corporate Governance and Nominating Committee whose principal
duties will be to assist the Board by identifying individuals
qualified to become Board members consistent with criteria approved
by the Board, to recommend to the Board for its approval the slate
of nominees to be proposed by the Board to the shareholders for
election to the Board, to develop and recommend to the Board the
governance principles applicable to the Corporation, as well as
such other duties and responsibilities as the Board may confer upon
the committee from time to time. In the event the Corporate
Governance and Nominating Committee will not be recommending a then
incumbent director for inclusion in the slate of nominees to be
proposed by the Board to the shareholders for election to the
Board, and provided such incumbent director has not notified the
Committee that he or she will be resigning or that he or she does
not intend to stand for re-election to the Board, then, in the case
of an election to be held at an annual meeting of shareholders, the
Committee will recommend the slate of nominees to the Board at
least thirty (30) days prior to the latest date required by the
provisions of Sections 2.14 and 2.15 of these bylaws for
shareholders to submit nominations for directors at such annual
meeting, or in the case of an election to be held at a special
meeting of shareholders, at least ten (10) days prior to the latest
date required by the provisions of Sections 2.14 and 2.15 of these
bylaws for shareholders to submit nominations for directors at such
special meeting.
4.6 Compensation
Committee. The Board shall establish a Compensation Committee
whose principal duties will be to review employee compensation
policies and programs as well as the compensation of the chief
executive officer and other executive officers of the Corporation,
to recommend to the Board a compensation program for outside Board
members, as well as such other duties and responsibilities as the
Board may confer upon the committee from time to time.
ARTICLE V
OFFICERS
5.1 Officers. The
officers of the Corporation shall be a chief executive officer and
a secretary. The Corporation may also have, at the discretion of
the Board, a chairman of the Board, an executive chairman of the
Board, one or more presidents, a chief financial officer, a
treasurer, one or more vice presidents, one or more assistant vice
presidents, one or more assistant treasurers, one or more assistant
secretaries, and any such other officers as may be appointed in
accordance with the provisions of these bylaws.
Any number of offices may be held by the same person, provided,
however, that, except as provided in Section 5.6 below, the
chairman of the Board shall not hold any other office of the
Corporation.
5.2 Appointment of
Officers. The Board shall appoint the officers of the
Corporation, except such officers as may be appointed in accordance
with the provisions of Sections 5.3 of these bylaws, subject to the
rights, if any, of an officer under any contract of employment.
Each officer shall hold office until his or her successor is
elected and qualified or until his or her earlier resignation or
removal. A failure to elect officers shall not dissolve or
otherwise affect the Corporation.
5.3 Subordinate
Officers. The Board may appoint, or empower the chief executive
officer of the Corporation, to appoint, such other officers and
agents as the business of the Corporation may require. Each of such
officers and agents shall hold office for such period, have such
authority, and perform such duties as are provided in these bylaws
or as the Board may from time to time determine.
5.4 Removal and
Resignation of Officers. Any officer may be removed, either
with or without cause, by an affirmative vote of the majority of
the Board at any regular or special meeting of the Board or, except
in the case of an officer appointed by the Board, by any officer
upon whom such power of removal has been conferred by the
Board.
Any officer may resign at any time by giving written notice to the
Corporation. Any resignation shall take effect at the date of the
receipt of that notice or at any later time specified in that
notice. Unless otherwise specified in the notice of resignation,
the acceptance of the resignation shall not be necessary to make it
effective. Any resignation is without prejudice to the rights, if
any, of the Corporation under any contract to which the officer is
a party.
5.5 Vacancies in
Offices. Any vacancy occurring in any office of the Corporation
shall be filled by the Board or as provided in Section 5.2.
5.6 Chairman of the
Board. The chairman of the Board shall be a member of the Board
and, if present, preside at meetings of the Board and exercise and
perform such other powers and duties as may from time to time be
assigned to him or her by the Board or as may be prescribed by
these bylaws.
5.7 Chief Executive
Officer. Subject to the control of the Board and any
supervisory powers the Board may give to the chairman of the Board,
the chief executive officer shall have general supervision,
direction, and control of the business and affairs of the
Corporation and shall see that all orders and resolutions of the
Board are carried into effect. The chief executive officer shall,
together with any president or presidents of the Corporation, also
perform all duties incidental to this office that may be required
by law and all such other duties as are properly required of this
office by the Board of Directors. The chief executive officer shall
serve as chairman of and preside at all meetings of the
shareholders. In the absence of the chairman of the Board, the
chief executive officer shall preside at all meetings of the
Board.
5.8 Presidents.
Subject to the control of the Board and any supervisory powers the
Board may give to the chairman of the Board, any president or
presidents of the Corporation shall, together with the chief
executive officer, have general supervision, direction, and control
of the business and affairs of the Corporation and shall see that
all orders and resolutions of the Board are carried into effect. A
president shall have such other powers and perform such other
duties as from time to time may be prescribed for him or her by the
Board, these bylaws, the chief executive officer, or the chairman
of the Board.
5.9 Vice
Presidents. In the absence or disability of any president, the
vice presidents, if any, in order of their rank as fixed by the
Board or, if not ranked, a vice president designated by the Board,
shall perform all the duties of a president. When acting as a
president, the appropriate vice president shall have all the powers
of, and be subject to all the restrictions upon, that president.
The vice presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them
respectively by the Board, these bylaws, the chairman of the Board,
the chief executive officer or, in the absence of a chief executive
officer, any president.
5.10 Secretary. The
secretary shall keep or cause to be kept, at the principal
executive office of the Corporation or such other place as the
Board may direct, a book of minutes of all meetings and actions of
directors, committees of directors, and shareholders. The minutes
shall show:
(a) the time and place of
each meeting;
(b) whether regular or
special (and, if special, how authorized and the notice given);
(c) the names of those
present at directors’ meetings or committee meetings;
(d) the number of shares
present or represented at shareholders’ meetings; and
(e) the proceedings
thereof.
The secretary
shall keep, or cause to be kept, at the principal executive office
of the Corporation or at the office of the Corporation’s transfer
agent or registrar, as determined by resolution of the Board, a
share register, or a duplicate share register showing:
(a) the names of all
shareholders and their addresses;
(b) the number and classes
of shares held by each;
(c) the number and date of
certificates evidencing such shares; and
(d) the number and date of
cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all
meetings of the shareholders and of the Board required to be given
by law or by these bylaws. The secretary shall keep the seal of the
Corporation, if one be adopted, in safe custody and shall have such
other powers and perform such other duties as may be prescribed by
the Board or by these bylaws.
5.11 Chief Financial
Officer. The chief financial officer shall keep and maintain,
or cause to be kept and maintained, adequate and correct books and
records of accounts of the properties and business transactions of
the Corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, retained earnings
and shares. The books of account shall at all reasonable times be
open to inspection by any director.
The chief financial officer shall deposit all moneys and other
valuables in the name and to the credit of the Corporation with
such depositories as the Board may designate. The chief financial
officer shall disburse the funds of the Corporation as may be
ordered by the Board, shall render to the chief executive officer
or, in the absence of a chief executive officer, any president and
directors, whenever they request it, an account of all his or her
transactions as chief financial officer and of the financial
condition of the Corporation, and shall have other powers and
perform such other duties as may be prescribed by the Board or
these bylaws.
The chief
financial officer may be the treasurer of the Corporation.
5.12 Treasurer. The
treasurer shall keep and maintain, or cause to be kept and
maintained, adequate and correct books and records of accounts of
the properties and business transactions of the Corporation,
including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings and
shares. The books of account shall at all reasonable times be open
to inspection by any director.
The treasurer shall deposit all moneys and other valuables in the
name and to the credit of the Corporation with such depositories as
the Board may designate. The treasurer shall disburse the funds of
the Corporation as may be ordered by the Board, shall render to the
chief executive officer or, in the absence of a chief executive
officer, any president and the directors, whenever they request it,
an account of all his or her transactions as treasurer and of the
financial condition of the Corporation, and shall have other powers
and perform such other duties as may be prescribed by the Board or
these bylaws.
5.13 Assistant
Secretary. The assistant secretary, or, if there is more than
one, the assistant secretaries in the order determined by the Board
(or if there be no such determination, then in the order of their
election) shall, in the absence of the secretary or in the event of
the secretary’s inability or refusal to act, perform the duties and
exercise the powers of the secretary and shall perform such other
duties and have such other powers as may be prescribed by the Board
or these bylaws.
5.14 Assistant
Treasurer. The assistant treasurer, or, if there is more than
one, the assistant treasurers, in the order determined by the Board
(or if there be no such determination, then in the order of their
election), shall, in the absence of the chief financial officer or
treasurer or in the event of the chief financial officer’s or
treasurer’s inability or refusal to act, perform the duties and
exercise the powers of the chief financial officer or treasurer, as
applicable, and shall perform such other duties and have such other
powers as may be prescribed by the Board or these bylaws.
5.15 Representation of
Shares of Other Corporations. The chairman of the Board, the
chief executive officer, any president, any vice president, the
treasurer, the secretary or assistant secretary of this
Corporation, or any other person authorized by the Board, the chief
executive officer, a president or a vice president, is authorized
to vote, represent, and exercise on behalf of this Corporation all
rights incident to any and all shares or other equity interests of
any other Corporation or entity standing in the name of this
Corporation. The authority granted herein may be exercised either
by such person directly or by any other person authorized to do so
by proxy or power of attorney duly executed by such person having
the authority.
5.16 Authority and
Duties of Officers. In addition to the foregoing authority and
duties, all officers of the Corporation shall respectively have
such authority and perform such duties in the management of the
business of the Corporation as may be designated from time to time
by the Board.
ARTICLE VI
RECORDS AND REPORTS
6.1 Maintenance and
Inspection of Records. The Corporation shall, either at its
principal executive office or at such place or places as designated
by the Board, keep a record of its shareholders listing their names
and addresses and the number and class of shares held by each
shareholder, a copy of these bylaws, as may be amended to date,
minute books, accounting books and other records.
Any such records maintained by the Corporation 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 the
provisions of the NRS. When records are kept in such manner, a
clearly legible paper form produced from or by means of the
information storage device or method shall be admissible in
evidence, and accepted for all other purposes, to the same extent
as an original paper form accurately portrays the record.
Any shareholder of record, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof,
have the right during the usual hours for business to inspect for
any proper purpose the Corporation’s stock ledger, a list of its
shareholders, and its other books and records and to make copies or
extracts therefrom. A proper purpose shall mean a purpose
reasonably related to such person’s interest as a shareholder. In
every instance where an attorney or other agent is the person who
seeks the right to inspection, the demand under oath shall be
accompanied by a power of attorney or such other writing that
authorizes the attorney or other agent to so act on behalf of the
shareholder. The demand under oath shall be directed to the
Corporation at its registered office in Nevada or at its principal
executive office.
6.2 Inspection by
Directors. Any director shall have the right to examine the
Corporation’s stock ledger, a list of its shareholders, and its
other books and records for a purpose reasonably related to his or
her position as a director.
ARTICLE VII
GENERAL MATTERS
7.1 Checks; Drafts;
Evidences of Indebtedness. From time to time, the Board shall
determine by resolution which person or persons may sign or endorse
all checks, drafts, other orders for payment of money, notes or
other evidences of indebtedness that are issued in the name of or
payable to the Corporation, and only the persons so authorized
shall sign or endorse those instruments.
7.2 Execution of
Corporate Contracts and Instruments. Except as otherwise
provided in these bylaws, the Board, or any officers of the
Corporation authorized thereby, may authorize any officer or
officers, or agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the Corporation;
such authority may be general or confined to specific
instances.
7.3 Stock Certificates;
Partly Paid Shares. The shares of the Corporation shall be
represented by certificates, provided that the Board may provide by
resolution or resolutions that some or all of any or all classes or
series of its stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate
until such certificate is surrendered to the Corporation.
Notwithstanding the adoption of such a resolution by the Board,
every holder of stock represented by certificates and upon request
every holder of uncertificated shares shall be entitled to have a
certificate signed by, or in the name of the Corporation by the
chairman or vice-chairman of the Board, or any president or
vice-president, and by the treasurer or an assistant treasurer, or
the secretary or an assistant secretary of such Corporation
representing the number of shares registered in certificate form.
Any or all of the signatures on the certificate may be a facsimile.
In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate has
ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the
same effect as if he or she were such officer, transfer agent or
registrar at the date of issue.
The Corporation may issue the whole or any part of its shares as
partly paid and subject to call for the remainder of the
consideration to be paid therefor. Upon the face or back of each
stock certificate issued to represent any such partly paid shares,
and upon the books and records of the Corporation in the case of
uncertificated partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon shall
be stated. Upon the declaration of any dividend on fully paid
shares, the Corporation shall declare a dividend upon partly paid
shares of the same class, but only upon the basis of the percentage
of the consideration actually paid thereon.
7.4 Special Designation
on Certificates. If the Corporation is authorized to issue more
than one class of stock or more than one series of any class, then
the powers, designations, preferences, and relative, participating,
optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized
on the face or back of the certificate that the Corporation shall
issue to represent such class or series of stock; provided,
however, that, except as otherwise provided in Section
78.242 of the NRS, in lieu of the foregoing requirements there may
be set forth on the face or back of the certificate that the
Corporation shall issue to represent such class or series of stock
a statement that the Corporation will furnish without charge to
each shareholder who so requests the powers, designations,
preferences, and relative, participating, optional or other special
rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences
and/or rights.
7.5 Lost
Certificates. Except as provided in this Section 7.6, no new
certificates for shares shall be issued to replace a previously
issued certificate unless the latter is surrendered to the
Corporation and cancelled at the same time. The Corporation may
issue a new certificate of stock or uncertificated shares in the
place of any certificate theretofore issued by it, alleged to have
been lost, stolen or destroyed, and the Corporation may require the
owner of the lost, stolen or destroyed certificate, or such owner’s
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 or
uncertificated shares.
7.6 Construction;
Definitions. Unless the context requires otherwise, the general
provisions, rules of construction, and definitions in the NRS shall
govern the construction of these bylaws. Without limiting the
generality of this provision, the singular number includes the
plural, the plural number includes the singular, and the term
“person” includes both a Corporation and a natural person.
7.7 Dividends. The
Board, subject to any restrictions contained in either (i) the NRS,
or (ii) the Articles, may declare and pay dividends upon the shares
of its capital stock. Dividends may be paid in cash, in property,
or in shares of the Corporation’s capital stock. The Board may set
apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose and may
abolish any such reserve.
7.8 Fiscal Year.
The fiscal year of the Corporation shall be fixed by resolution of
the Board and may be changed by the Board.
7.9 Seal. The
Corporation may adopt a corporate seal, which shall be adopted and
which may be altered by the Board. The Corporation may use the
corporate seal by causing it or a facsimile thereof to be impressed
or affixed or in any other manner reproduced.
7.10 Transfer of
Stock. Transfers of stock shall be made only upon the transfer
books of the Corporation kept at an office of the Corporation or by
transfer agents designated to transfer shares of the stock of the
Corporation. Except where a certificate is issued in accordance
with Section 7.5 of these bylaws, an outstanding certificate for
the number of shares involved shall be surrendered for cancellation
before a new certificate is issued therefore. Upon surrender to the
Corporation or the transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it
shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate, and record
the transaction in its books.
7.11 Stock Transfer
Agreements. The Corporation shall have power to enter into and
perform any agreement with any number of shareholders of any one or
more classes or series of stock of the Corporation to restrict the
transfer of shares of stock of the Corporation of any one or more
classes or series owned by such shareholders in any manner not
prohibited by the NRS.
7.12 Registered
Shareholders. The Corporation:
(a) shall be entitled to
recognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends and to vote as such
owner;
(b) shall be entitled to
hold liable for calls and assessments on partly paid shares the
person registered on its books as the owner of shares; and
(c) shall not be bound to
recognize any equitable or other claim to or interest in such share
or shares on the part of another person, whether or not it shall
have express or other notice thereof, except as otherwise provided
by the laws of Nevada.
7.13 Waiver of
Notice. Whenever notice is required to be given under any
provision of the NRS, the Articles or these bylaws, a written
waiver, signed by the person entitled to notice, or a waiver by
electronic transmission by the person entitled to notice, whether
before or after the time of the event for which notice is to be
given, shall be deemed equivalent to notice. Attendance of a person
at a meeting shall constitute a waiver of notice of such meeting,
except when the person attends a meeting solely for the express
purpose of objecting at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the shareholders
need be specified in any written waiver of notice or any waiver by
electronic transmission unless so required by the Articles or these
bylaws.
7.14 Charitable
Foundation. The establishment by the Corporation of a
charitable foundation will require Board approval, as will
contributions by the Corporation to the foundation and
disbursements by the foundation. The Board may delegate authority
over the foundation to one or more persons who are not directors of
the Corporation with the approval of two-thirds of the members of
the Board.
7.15 Forum
Selection. Unless the Corporation consents in writing to the
selection of an alternative forum, the federal or state courts
located in Clark County, Nevada, shall be the sole and exclusive
fora for: (i) any derivative action or proceeding brought on behalf
of the Corporation, (ii) any action asserting a claim for breach of
a fiduciary duty owed by any director, officer, employee or agent
of the Corporation to the Corporation or the Corporation’s
stockholders, (iii) any action asserting a claim arising pursuant
to any provision of the NRS, the Articles or these Bylaws of the
Corporation or (iv) any action asserting a claim governed by the
internal affairs doctrine as such doctrine exists under the law of
the State of Nevada. However, this sole and exclusive forum
provision will not apply in those instances where there is
exclusive federal jurisdiction, including but not limited to
actions arising under the Securities Act or the Exchange Act, in
all cases to the fullest extent permitted by law and subject to the
court having personal jurisdiction over the indispensable parties
named as defendants. This paragraph of Article VII shall not apply
to suits brought to enforce a duty or liability created by the
Securities Exchange Act of 1934, as amended, or any other claim for
which the federal courts have exclusive jurisdiction. Unless the
Corporation consents in writing to the selection of an alternative
forum, the federal district courts of the United States of America
shall be the exclusive forum for the resolution of any complaint
asserting a cause of action arising under the Securities Act of
1933, as amended. Any person or entity holding, owning or otherwise
acquiring any interest in any security of the Corporation shall be
deemed to have notice of and consent to the provisions of this
Certificate of Incorporation.
ARTICLE VIII
NOTICE BY ELECTRONIC TRANSMISSION
8.1 Notice by
Electronic Transmission. Without limiting the manner by which
notice otherwise may be given effectively to shareholders pursuant
to the NRS, the Articles or these bylaws, any notice to
shareholders given by the Corporation under any provision of the
NRS, the Articles or these bylaws shall be effective if given by a
form of electronic transmission consented to by the shareholder to
whom the notice is given. Any such consent shall be revocable by
the shareholder by written notice to the Corporation. Any such
consent shall be deemed revoked if:
(a) the Corporation is
unable to deliver by electronic transmission two consecutive
notices given by the Corporation in accordance with such consent;
and
b) such inability becomes
known to the secretary or an assistant secretary of the Corporation
or to the transfer agent, or other person responsible for the
giving of notice.
However, the inadvertent failure to treat such inability as a
revocation shall not invalidate any meeting or other action. Any
notice given pursuant to the preceding paragraph shall be deemed
given:
(a) if by facsimile
telecommunication, when directed to a number at which the
shareholder has consented to receive notice;
(b) if by electronic mail,
when directed to an electronic mail address at which the
shareholder has consented to receive notice;
(c) if by a posting on an
electronic network together with separate notice to the shareholder
of such specific posting, upon the later of (A) such posting and
(B) the giving of such separate notice; and
(d) if by any other form
of electronic transmission, when directed to the shareholder.
An
affidavit of the secretary or an assistant secretary or of the
transfer agent or other agent of the Corporation that the notice
has been given by a form of electronic transmission shall, in the
absence of fraud, be prima facie evidence of the facts stated
therein.
8.2 Definition Of
Electronic Transmission. An “electronic transmission” means any
form of communication, not directly involving the physical
transmission of paper, that creates a record that may be retained,
retrieved, and reviewed by a recipient thereof, and that may be
directly reproduced in paper form by such a recipient through an
automated process.
8.3 Inapplicability.
Notice by a form of electronic transmission shall not apply to
Section 78.220 (subscriptions for corporate shares: Payment;
default; irrevocability), Section 78.685 (action on creditors’
claims; appeal of disallowed claims), Section 78.730 (Renewal or
revival: Procedure; fee; certificate as evidence) or Section 31.050
(Attachment of shares of stock, debts due defendant and other
property) of the NRS.
ARTICLE IX
INDEMNIFICATION OF DIRECTORS AND OFFICERS
9.1 Power to Indemnify
in Actions, Suits or Proceedings Other Than Those by or in the
Right of the Corporation. Subject to Section 9.3 of this
Article IX, the Corporation shall indemnify, to the fullest extent
permitted by the NRS, as now or hereafter in effect, any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Corporation) by reason of
the fact that such person (or the legal representative of such
person) is or was a director or officer of the Corporation or any
predecessor of the Corporation, or is or was a director or officer
of the Corporation serving at the request of the Corporation as a
director or officer, employee or agent of another Corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
such person’s conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good
faith and in a manner which such person reasonably believed to be
in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable
cause to believe that such person’s conduct was unlawful.
9.2 Power to Indemnify
in Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 9.3 of this Article IX, the
Corporation shall indemnify, to the fullest extent permitted by the
NRS, as now or hereafter in effect, any person who was or is a
party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the
fact that such person (or the legal representative of such person)
is or was a director or officer of the Corporation or any
predecessor of the Corporation, or is or was a director or officer
of the Corporation serving at the request of the Corporation as a
director, officer, employee or agent of another Corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys’ fees) actually
and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if such person acted
in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Corporation; except
that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to
be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
9.3 Authorization of
Indemnification. Any indemnification under this Article IX
(unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard
of conduct set forth in Section 9.1 or Section 9.2 of this Article
IX, as the case may be. Such determination shall be made, with
respect to a person who is a director or officer at the time of
such determination, (i) by a majority vote of the directors who are
not parties to such action, suit or proceeding, even though less
than a quorum, or (ii) by a committee of such directors designated
by a majority vote of such directors, even though less than a
quorum, or (iii) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written
opinion or (iv) by the shareholders (but only if a majority of the
directors who are not parties to such action, suit or proceeding,
if they constitute a quorum of the board of directors, presents the
issue of entitlement to indemnification to the shareholders for
their determination). Such determination shall be made, with
respect to former directors and officers, by any person or persons
having the authority to act on the matter on behalf of the
Corporation. To the extent, however, that a present or former
director or officer of the Corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding
described above, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred by
such person in connection therewith, without the necessity of
authorization in the specific case.
9.4 Good Faith
Defined. For purposes of any determination under Section 9.3 of
this Article IX, to the fullest extent permitted by applicable law,
a person shall be deemed to have acted in good faith and in a
manner such person reasonably believed to be in or not opposed to
the best interests of the Corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable cause to
believe such person’s conduct was unlawful, if such person’s action
is based on the records or books of account of the Corporation or
another enterprise, or on information supplied to such person by
the officers of the Corporation or another enterprise in the course
of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records
given or reports made to the Corporation or another enterprise by
an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Corporation or
another enterprise. The term “another enterprise” as used in this
Section 9.4 shall mean any other Corporation or any partnership,
joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the
Corporation as a director, officer, employee or agent. The
provisions of this Section 9.4 shall not be deemed to be exclusive
or to limit in any way the circumstances in which a person may be
deemed to have met the applicable standard of conduct set forth in
Section 9.1 or 9.2 of this Article IX, as the case may be.
9.5 Indemnification by
a Court. Notwithstanding any contrary determination in the
specific case under Section 9.3 of this Article IX, and
notwithstanding the absence of any determination thereunder, any
director or officer may apply to the Court of Chancery in the State
of Nevada for indemnification to the extent otherwise permissible
under Sections 9.1 and 9.2 of this Article IX. The basis of such
indemnification by a court shall be a determination by such court
that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standards
of conduct set forth in Section 9.1 or 9.2 of this Article IX, as
the case may be. Neither a contrary determination in the specific
case under Section 9.3 of this Article IX nor the absence of any
determination thereunder shall be a defense to such application or
create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct.
Notice of any application for indemnification pursuant to this
Section 9.5 shall be given to the Corporation promptly upon the
filing of such application. If successful, in whole or in part, the
director or officer seeking indemnification shall also be entitled
to be paid the expense of prosecuting such application.
9.6 Expenses Payable in
Advance. To the fullest extent not prohibited by the NRS, or by
any other applicable law, expenses incurred by a person who is or
was a director or officer in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such
action, suit or proceeding; provided, however, that if the NRS
requires, an advance of expenses incurred by any person in his or
her capacity as a director or officer (and not in any other
capacity) shall be made only upon receipt of an undertaking by or
on behalf of such person to repay such amount if it shall
ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized in this Article
IX.
9.7 Non-Exclusivity of
Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted
pursuant to this Article IX shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement
of expenses may be entitled under the Articles, any bylaw,
agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in such person’s official capacity and
as to action in another capacity while holding such office, it
being the policy of the Corporation that indemnification of the
persons specified in Sections 9.1 and 9.2 of this Article IX shall
be made to the fullest extent permitted by law. The provisions of
this Article IX shall not be deemed to preclude the indemnification
of any person who is not specified in Section 9.1 or 9.2 of this
Article IX but whom the Corporation has the power or obligation to
indemnify under the provisions of the NRS, or otherwise. The
Corporation is specifically authorized to enter into individual
contracts with any or all of its directors, officers, employees or
agents respecting indemnification and advances, to the fullest
extent not prohibited by the NRS, or by any other applicable
law.
9.8 Insurance. To
the fullest extent permitted by the NRS or any other applicable
law, the Corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent
of the Corporation, or is or was a director, officer, employee or
agent of the Corporation serving at the request of the Corporation
as a director, officer, employee or agent of another Corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of
such person’s status as such, whether or not the Corporation would
have the power or the obligation to indemnify such person against
such liability under the provisions of this Article IX.
9.9 Certain
Definitions. For purposes of this Article IX, references to the
“ Corporation” shall include, in addition to the resulting
Corporation, any constituent Corporation (including any constituent
of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and
authority to indemnify its directors or officers, so that any
person who is or was a director or officer of such constituent
Corporation, or is or was a director or officer of such constituent
Corporation serving at the request of such constituent Corporation
as a director, officer, employee or agent of another Corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, shall stand in the same position under the provisions
of this Article IX with respect to the resulting or surviving
Corporation as such person would have with respect to such
constituent Corporation if its separate existence had continued.
For purposes of this Article IX, references to “fines” shall
include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to “serving at the request of
the Corporation” shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or
involves services by, such director or officer with respect to an
employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner “not opposed to the best interests of the
Corporation” as referred to in this Article IX.
9.10 Survival of
Indemnification and Advancement of Expenses. The rights to
indemnification and advancement of expenses conferred by this
Article IX shall continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs,
executors, administrators and other personal and legal
representatives of such a person.
9.11 Limitation On
Indemnification. Notwithstanding anything contained in this
Article IX to the contrary, except for proceedings to enforce
rights to indemnification (which shall be governed by Section 9.5
hereof), the Corporation shall not be obligated to indemnify any
director or officer in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part
thereof) was authorized or consented to by the board of directors
of the Corporation.
9.12 Indemnification of
Employees and Agents. The Corporation may, to the extent
authorized from time to time by the board of directors, provide
rights to indemnification and to the advancement of expenses to
employees and agents of the Corporation similar to those conferred
in this Article IX to directors and officers of the
Corporation.
9.13 Effect of
Amendment or Repeal. Neither any amendment or repeal of any
Section of this Article IX, nor the adoption of any provision of
the Articles or the bylaws inconsistent with this Article IX, shall
adversely affect any right or protection of any director, officer,
employee or other agent established pursuant to this Article IX
existing at the time of such amendment, repeal or adoption of an
inconsistent provision, including without limitation by eliminating
or reducing the effect of this Article IX, for or in respect of any
act, omission or other matter occurring, or any action or
proceeding accruing or arising (or that, but for this Article IX,
would accrue or arise), prior to such amendment, repeal or adoption
of an inconsistent provision.
ARTICLE X
AMENDMENTS
The bylaws of the Corporation may be adopted, amended or repealed
by a majority of the voting power of the shareholders entitled to
vote; provided, however, that the Corporation may, in its Articles,
also confer the power to adopt, amend or repeal bylaws upon the
Board. The fact that such power has been so conferred upon the
Board shall not divest the shareholders of the power, nor limit
their power to adopt, amend or repeal bylaws.
* *
* * *
TURNONGREEN, INC.
a Nevada Corporation
CERTIFICATE OF ADOPTION OF BYLAWS
The undersigned hereby certifies that he or she is the duly
elected, qualified, and acting Chief Executive Officer of
TurnOnGreen, Inc., a Nevada Corporation, and that the foregoing
bylaws, comprising eighteen (18) pages, were adopted as the
Corporation’s bylaws as of October __, 2022, by the Corporation’s
board of directors.
IN
WITNESS WHEREOF, the undersigned has hereunto set his hand this
__th day of October, 2022.
/s/Amos Kohn |
|
Amos Kohn |
|
Chief Executive
Officer |
|
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