EXHIBIT 3.2
AMENDED & RESTATED BYLAWS AS OF DECEMBER, 1998
Bylaws
of
Equity Growth Systems, inc.
ARTICLE I
STOCKHOLDERS
SECTION 1. Annual Meetings
(a) (1) The annual meeting of the stockholders of the Corporation
shall be held at the principal office of the Corporation in the
State of Delaware or at such other place within or without the
State of Delaware as may be determined by the Board of Directors
and as may be designated in the notice of such meeting.
(2) The meeting shall be held on the 15th day of July of each year or
on such other day as the Board of Directors may specify.
(3) If said day is a legal holiday, the meeting shall be held on the
next succeeding business day not a legal holiday.
(b) Business to be transacted at such meeting shall be the election of
Directors to succeed those whose terms are expiring and such other
business as may be properly brought before the meeting.
(c) In the event that the annual meeting, by mistake or otherwise, shall not
be called and held as herein provided, a special meeting may be called as
provided for in Section 2 of this Article I in lieu of and for the
purposes of and with the same effect as the annual meeting.
SECTION 2. Special Meetings
(a) A special meeting of the stockholders of the Corporation may be called
for any purpose or purposes at any time by the Chairman or President of
the Corporation, by the Board of Directors or by the holders of not less
than 10% of the outstanding capital stock of the Corporation entitled to
vote at such meeting.
(b) (1) At any time, upon the written direction of any person or
persons entitled to call a special meeting of the stockholders, it
shall be the duty of the Secretary to send notice of such meeting
pursuant to Section 4 of this Article I.
(2) It shall be the responsibility of the person or persons directing
the Secretary to send notice of any special meeting of
stockholders to deliver such direction and a proposed form of
notice to the Secretary not less than 15 days prior to the
proposed date of said meeting.
(c) Special meetings of the stockholders of the Corporation shall be held at
such place, within or without the State of Delaware, on such dates, and
at such time as shall be specified in the notice of such special meeting.
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SECTION 3. Adjournment
(a) When the annual meeting is convened, or when any special meeting is
convened, the presiding officer may adjourn it for such period of time as
may be reasonably necessary to reconvene the meeting at another place and
time.
(b) The presiding officer shall have the power to adjourn any meeting of the
stockholders for any proper purpose, including, but not limited to, lack
of a quorum, securing a more adequate meeting place, electing officials
to count and tabulate votes, reviewing any stockholder proposals or
passing upon any challenge which may properly come before the meetings.
(c) (1) When a meeting is adjourned to another time or place,
it shall not be necessary to give any notice of the
adjourned meeting if the time and place to which the
meeting is adjourned are announced at the meeting at
which the adjournment is taken, and any business may
be transacted at the adjourned meeting that might have
been transacted on the original date of the meeting.
(2) If, however, after the adjournment the Board fixes a new record
date for the adjourned meeting, a notice of the adjourned meeting
shall be given in compliance with Section 4(a) of this Article I
to each stockholder of record on the new record date entitled to
vote at such meeting.
SECTION 4. Notice of Meetings; Purpose of Meeting; Waiver
(a) (1) Each stockholder of record entitled to vote at any
meeting shall be given in person, or by first class
mail, postage prepaid, written notice of such meeting
which, in the case of a special meeting, shall set
forth the purpose(s) for which the meeting is called,
not less than 10 or more than 60 days before the date
of such meeting.
(2) If mailed, such notice is to be sent to the
stockholder's address as it appears on the stock
transfer books of the Corporation, unless the
stockholder shall be requested of the Secretary in
writing at least 15 days prior to the distribution of
any required notice that any notice intended for him
or her be sent to some other address, in which case
the notice may be sent to the address so designated.
(3) Notwithstanding any such request by a stockholder, notice sent to
a stockholder's address as it appears on the stock transfer books
of this Corporation as of the record date shall be deemed properly
given.
(4) Any notice of a meeting sent by United States mail shall be deemed
delivered when deposited with proper postage thereon with the
United States Postal Service or in any mail receptacle under its
control.
(b) (1) A stockholder waives notice of any meeting by attendance,
either in person or by proxy, at such meeting or by waiving notice
in writing either before, during or after such meeting.
(2) Attendance at a meeting for the express purpose of objecting that
the meeting was not lawfully called or convened, however, will not
constitute a waiver of notice by a stockholder who states at the
beginning of the meeting, his or her objection that the meeting is
not lawfully called or convened.
(c) A waiver of notice signed by all stockholders entitled to vote at a
meeting of stockholders may also be used for any other proper purpose
including, but not limited to, designating any place within or without
the State of Delaware as the place for holding such a meeting.
(d) Neither the business to be transacted at, nor the purpose of, any regular
or special meeting of stockholders need be specified in any written
waiver of notice.
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SECTION 5. Closing of Transfer Books; Record Date; Stockholders'
List
(a) In order to determine the holders of record of the capital stock of the
Corporation who are entitled to notice of meetings, to vote a meeting or
adjournment thereof, or to receive payment of any dividend, or for any
other purpose, the Board of Directors may fix a date not more than 60
days prior to the date set for any of the above-mentioned activities for
such determination of stockholders.
(b) If the stock transfer books shall be closed for the purpose of
determining stockholders entitled to notice of or to vote at a meeting of
stockholders, such books shall be closed for at least 10 days immediately
preceding such meeting.
(c) In lieu of closing the stock transfer books, the Board of Directors may
fix in advance a date as the date for any such determination of
stockholders, such date in any case to be not more than 60 days prior to
the date on which the particular action, requiring such determination of
stockholders, is to be taken.
(d) If the stock transfer books are not closed and no record date
is fixed for the determination of stockholders entitled to
notice or to vote at a meeting of stockholders, or to receive
payment of a dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the
Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination
of stockholders.
(e) When a determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this Section, such
determination shall apply to any adjournment thereof, unless the Board of
Directors fixes a new record date under this Section for the adjourned
meeting.
(f) (1) The officer or agent having charge of the stock
transfer books of the Corporation shall make, as of a
date at least 10 days before each meeting of
stockholders, a complete list of the stockholders
entitled to vote at such meeting or any adjournment
thereof, with the address of each stockholder and the
number and class and series, if any, of shares held by
each stockholder.
(2) Such list shall be kept on file at the registered
office of the Corporation, at the principal place of
business of the Corporation or at the office of the
transfer agent or registrar of the Corporation for a
period of 10 days prior to such meeting and shall be
available for inspection by any stockholder at any
time during usual business hours.
(3) Such list shall also be produced and kept open at the time and
place of any meeting of stockholders and shall be subject to
inspection by any stockholder at any time during the meeting.
(g) The original stock transfer books shall be prima facie evidence as to the
stockholders entitled to examine such list or stock transfer books or to
vote any meeting of stockholders.
(h) If the requirements of Section 5(f) of this Article I have not been
substantially complied with, then, on the demand of any stockholder in
person or by proxy, the meeting shall be adjourned until such
requirements are complied with.
(i) If no demand pursuant to Section 5(h) of this Article I is made, failure
to comply with the requirements of this Section shall not affect the
validity of any action taken at such meeting.
(j) Section 5(g) of this Article I shall be operative only at such time(s) as
the Corporation shall have 6 or more stockholders.
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SECTION 6. Quorum
(a) At any meeting of the stockholders of the Corporation, the presence, in
person or by proxy, of stockholders holding a majority of the issued and
outstanding shares of the capital stock of the Corporation entitled to
vote thereat shall be necessary to constitute a quorum for the
transaction of any business.
(b) If a quorum is present, the vote of a majority of the shares represented
at such meeting and entitled to vote on the subject matter shall be the
act of the stockholders.
(c) If there shall not be a quorum at any meeting of the stockholders of the
Corporation, then the holders of a majority of the shares of the capital
stock of the Corporation who shall be present at such meeting, in person
or by proxy, may adjourn such meeting from time to time until holders of
a quorum of the shares of the capital stock shall attend.
(d) At any such adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at the
meeting as originally scheduled.
SECTION 7. Presiding Officer; Order of Business
(a) (1) Meetings of the stockholders shall be presided over by
the Chairman of the Board, or, if he or she is not
present or there is no Chairman of the Board, by the
President or, if he or she is not present, by the
senior Vice President present or, if neither the
Chairman of the Board, the President, nor a Vice
President is present, the meeting shall be presided
over by a chairman to be chosen by a plurality of the
stockholders entitled to vote at the meeting who are
present, in person or by proxy.
(2) The presiding officer of any meeting of the stockholders may
delegate his or her duties and obligations as the presiding
officer as he or she sees fit.
(b) The Secretary of the Corporation, or, in his or her absence, an Assistant
Secretary shall act as Secretary of every meeting of stockholders, but if
neither the Secretary nor an Assistant Secretary is present, the
presiding officer of the meeting shall choose any person present to act
as secretary of the meeting.
(c) The order of business shall be as follows:
Call of meeting to order.
Proof of notice of meeting.
Reading minutes of last previous stockholders' meeting or a waiver thereof.
Reports of Officers.
Reports of committees.
Election of Directors.
Regular and miscellaneous business.
Special matters.
Adjournment.
(d) (1) Notwithstanding the provisions of Section 7(c) of this Article
I, the order and topics of business to be transacted at any
meeting shall be determined by the presiding officer of the
meeting in his or her sole discretion.
(2) In no event shall any variation in the order of business or
additions and deletions from the order of business as specified in
Section 7(c) of this Article I invalidate any actions properly
taken at any meeting.
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SECTION 8. Voting
(a) Unless otherwise provided for in the Certificate of Incorporation, each
stockholder shall be entitled, at each meeting and upon each proposal to
be voted upon, to one vote for each share of voting stock recorded in his
name on the books of the Corporation on the record date fixed as provided
for in Section 5 of this Article I.
(b) (1) The presiding officer at any meeting of the stockholders shall
have the power to determine the method and means of voting when
any matter is to be voted upon.
(2) The method and means of voting may include, but shall not be
limited to, vote by ballot, vote by hand or vote by voice.
(3) No method of voting may be adopted, however, which fails to take
account of any stockholder`s right to vote by proxy as provided
for in Section 10 of this Article I.
(4) In no event may any method of voting be adopted which would
prejudice the outcome of the vote.
SECTION 9. Action Without Meeting
(a) (1) Any action required to be taken at any annual or
special meeting of stockholders of the Corporation, or
any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken,
shall be signed by the holders of a majority of the
Corporation's outstanding voting stock.
(2) Such instrument may be executed in counterparts or as a unitary
document.
(b) In the event that the action to which the stockholders
consent is such as would have required the filing of a
certificate under the Delaware General Corporation Law, the
effect of such consent shall be as if such action had been
voted on by stockholders at a meeting thereof, however, the
certificate filed under such other section shall state that
written consent has been given in accordance with the
provisions of Section 9 of this Article I.
(c) If stockholder action is taken by written consent in lieu of meeting
signed by less than all of the Corporation's stockholders, then all non
participating stockholders shall be provided with written notice of the
action taken within 10 days after the effective date of the written
instrument taking such action.
(d) No action by written consent in lieu of meeting shall be valid if it is
in contravention of applicable proxy or informational rules adopted
pursuant to the Securities Exchange Act of 1934, as amended, including,
without limitation, the requirements of Section 14 thereof.
SECTION 10. Proxies
(a) Every stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent without a meeting, or his or her duly
authorized attorney-in-fact, may authorize another person or persons to
act for him or her by proxy.
(b) (1) Every proxy must be signed by the stockholder or his or her
attorney-in-fact.
(2) No proxy shall be valid after the expiration of 11 months from the
date thereof unless otherwise provided in the proxy.
(3) Every proxy shall be revocable at the pleasure of the stockholder
executing it, except as otherwise provided in this Section 10.
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(c) The authority of the holder of a proxy to act shall not be revoked by the
incompetence or death of the stockholder who executed the proxy unless,
before the authority is exercised, written notice of any adjudication of
such incompetence or of such death is received by the corporate officer
responsible for maintaining the list of stockholders.
(d) Except when other provisions shall have been made by written agreement
between the parties, the record holder of shares held as pledges or
otherwise as security or which belong to another, shall issue to the
pledgor or to such owner of such shares, upon demand therefor and payment
of necessary expenses thereof, a proxy to vote or take other action
thereon.
(e) A proxy which states that it is irrevocable is irrevocable
when it is held by any of the following or a nominee of any
of the following: (i) a pledgee; (ii) a person who has
purchased or agreed to purchase the shares: (iii) a creditor
or creditors of the Corporation who extend or continue to
extend credit to the Corporation in consideration of the
proxy, if the proxy states that it was given in consideration
of such extension or continuation of credit, the amount
thereof, and the name of the person extending or continuing
credit; (iv) a person who has contracted to perform services
as an officer of the Corporation, if a proxy is required by
the contract of employment, if the proxy states that it was
given in consideration of such contract of employment and
states the name of the employee and the period of employment
contracted for; and (v) a person designated by or under an
agreement as provided in Article XI hereof.
(f) (1) Notwithstanding a provision in a proxy stating that it
is irrevocable, the proxy becomes revocable after the
pledge is redeemed, the debt of the Corporation is
paid, the period of employment provided for in the
contract of employment has terminated, or the
agreement under Article XI hereof has terminated and,
in a case provided for in Section 10(e) (iii) or
Section 10(e) (iv) of this Article I, becomes
revocable three years after the date of the proxy or
at the end of the period, if any, specified therein,
whichever period is less, unless the period of
irrevocability of the proxy as provided in this
Section 10.
(2) This Section 10(f) does not affect the duration of a proxy under
Section 10(b) of this Article I.
(g) A proxy may be revoked, notwithstanding a provision making it
irrevocable, by a purchaser of shares without knowledge of the existence
of the provisions unless the existence of the proxy and its
irrevocability is noted conspicuously on the face or back of the
certificate representing such shares.
(h) (1) If a proxy for the same shares confers authority upon two or
more persons and does not otherwise provide, a majority of such
persons present at the meeting, or if only one is present then
that one, may exercise all the powers conferred by the proxy.
(2) If the proxy holders present at the meeting are equally divided as
to the right and manner of voting in any particular case, the
voting of such shares shall be prorated.
(i) If a proxy expressly so provides, any proxy holder may appoint in writing
a substitute to act in his or her place.
(j) Notwithstanding anything in the Bylaws to the contrary, no proxy shall be
valid if it was obtained in violation of any applicable requirements of
Section 14 of the Securities Exchange Act of 1934, as amended, or the
Rules and Regulations promulgated thereunder.
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SECTION 11. Voting of Shares by Stockholders
(a) (1) Shares standing in the name of another corporation, domestic
or foreign, may be voted by the officer, agent, or proxy
designated by the bylaws of the corporate stockholder; or, in the
absence of any applicable bylaw, by such person as the Board of
Directors of the corporate stockholder may designate.
(2) Proof of such designation may be made by presentation of a
certified copy of the bylaws or other instrument of the corporate
stockholder.
(3) In the absence of any such designation, or in case of conflicting
designation by the corporate stockholder, the chairman of the
board, president, any vice president, secretary and treasurer of
the corporate stockholder, in that order, shall be presumed to
possess authority to vote such shares.
(b) (1) Shares held by an administrator, executor, guardian or
conservator may be voted by him or her, either in person or by
proxy, without a transfer of such shares into his or her name.
(2) Shares standing in the name of a trustee may be voted as shares
held by him or her without a transfer of such shares into his
name.
(c) (1) Shares standing in the name of a receiver may be voted by such
receiver.
(2) Shares held by or under the control of a receiver but not standing
in the name of such receiver, may be voted by such receiver
without the transfer thereof into his name if authority to do so
is contained in an appropriate order of the court by which such
receiver was appointed.
(d) A stockholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the
pledgee.
(e) Shares of the capital stock of the Corporation belonging to the
Corporation or held by it in a fiduciary capacity shall not be voted,
directly or indirectly, at any meeting, and shall not be counted in
determining the total number of outstanding shares.
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ARTICLE II
DIRECTORS
SECTION 1. Board of Directors; Exercise of Corporate Powers
(a) (1) All corporate powers shall be exercised by or under the
authority of, and the business and affairs of the Corporation
shall be managed under the direction of, the Board of Directors
except as may be otherwise provided in the Certificate of
Incorporation or in a stockholders' agreement.
(2) If any such provision is made in the Certificate of
Incorporation or in a stockholders' agreement, the
powers and duties conferred or imposed upon the Board
of Directors shall be exercised or performed to such
extent and by such person or persons as shall be
provided in the Certificate of Incorporation or
stockholders' agreement.
(b) Directors need not be residents of this state or stockholders of the
Corporation unless the Certificate of Incorporation so requires.
(c) The Board of Directors shall have authority to fix the compensation of
Directors unless otherwise provided in the Certificate of Incorporation.
(d) A Director shall perform his or her duties as a Director, including his
or her duties as a member of any committee of the Board upon which he may
serve, in good faith, in a manner he or she reasonably believes to be in
the best interests of the Corporation, and with such care as an
ordinarily prudent person in a like position would use under similar
circumstances.
(e) In performing his or her duties, a Director shall be entitled
to rely on information, opinions, reports or statements,
including without limitation, financial statements and other
financial data, in each case prepared or presented by: (i)
one or more officers or employees of the Corporation whom the
Director reasonably believes to be reliable and competent in
the matters presented; (ii) legal counsel, public
accountants or other persons as to matters which the Director
reasonably believes to be within such persons' professional
or expert competence; or (iii) a committee of the Board upon
which he or she does not serve, duly designated in accordance
with a provision of the Certificate of Incorporation or these
Bylaws, as to matters within its designated authority, which
committee the Director reasonably believes to merit confidence.
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(f) A Director shall not be considered to be acting in good faith if he or
she has knowledge concerning the matter in question that would cause such
reliance described in Section 1(e) of this Article II to be unwarranted.
(g) A person who performs his or her duties in compliance with Section 1 of
this Article II shall have no liability by reason of being or having been
a Director of the Corporation.
(h) A Director of the Corporation who is present at a meeting of the Board of
Directors at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless he or she votes
against such action or abstains from voting in respect thereto because of
an asserted conflict of interest.
SECTION 2. Number; Election; Classification of Directors; Vacancies
(a) (1) The Board of Directors of this Corporation shall consist of
not less than one Director.
(2) The Board shall have authority, from time to time, to increase the
number of Directors or to decrease it to not less than one member,
provided that no decrease in the number of Directors shall deprive
a serving Director of the right to serve throughout the term of
his or her election.
(b) Each person named in the Certificate of Incorporation as a member of the
initial Board of Directors shall serve until his or her successor shall
have been elected and qualified or until his or her earlier resignation,
removal from office, or death.
(c) (1) At the first annual meeting of stockholders and at each annual
meeting thereafter, the stockholders shall elect Directors to hold
office until the next succeeding annual meeting, except in case of
the classification of Directors as permitted by the Delaware
General Corporation Law.
(2) Each Director shall hold office for the term for which he or she
is elected and until his or her successor shall have been elected
and qualified or until his or her earlier resignation, removal
from office, or death.
(d) (1) The stockholders, by amendment to these Bylaws, may
provide that the Directors be divided into not more
than four classes, as nearly equal in number as
possible, whose terms of office shall respectively
expire at different times, but no such term shall
continue longer than four years, and at least one
fourth of the Directors shall be elected annually.
(2) If Directors are classified and the number of Directors is
thereafter changed, any increase or decrease in Directorship shall
be so apportioned among the classes as to make all classes as
nearly equal in number as possible.
(e) (1) Any vacancy occurring in the Board of Directors, including any
vacancy created by reason of an increase in the number of
Directors, may be filled only by the Board of Directors.
(2) A Director elected to fill a vacancy shall hold office only until
the next election of Directors by the stockholders.
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SECTION 3. Removal of Directors
(a) At a meeting of stockholders called expressly for that purpose, any
Director or the entire Board of Directors may be removed, with or without
cause, by the vote of the holders of 60% of the shares then entitled to
vote at an election of Directors; provided that at least one Director
remains in office or one Director is elected as a replacement Director
concurrently with such removal.
(b) In the event that the number of Directors is reduced below
that number mandated in the Certificate of Incorporation as a
result of the removal of one or more Directors by the
stockholders, then the remaining Directors or the
contemporaneously elected replacement Director will promptly
elect replacement Directors, to serve until the next meeting
of the Corporation's stockholders, and until their
replacements have been elected, qualified and assume their
office.
SECTION 4. Director Quorum and Voting
(a) A majority of the Directors fixed in the manner provided in these Bylaws
shall constitute a quorum for the transaction of business.
(b) A majority of the members of an Executive Committee or other committee
shall constitute a quorum for the transaction of business at any meeting
of such Executive Committee or other committee.
(c) The act of a majority of the Directors present at a Board meeting at
which a quorum is present shall be the act of the Board of Directors.
(d) The act of a majority of the members of an Executive Committee present at
an Executive Committee meeting at which a quorum is present shall be the
act of the Executive Committee.
(e) The act of a majority of the members of any other committee present at a
committee meeting at which a quorum is present shall be the act of the
committee.
(f) Directors may, if not contrary to applicable law, vote either in person
or by proxy, provided that the proxy holder must be either another
Director, an officer or a stockholder of the Corporation; however, any
Director who elects to vote by proxy more than three times during any
single fiscal year shall, unless otherwise determined by the Board of
Directors, be automatically removed as a Director.
SECTION 5. Director Conflicts of Interest
(a) No contract or other transaction between this Corporation and
one or more of its Directors or any other corporation, firm,
association or entity in which one or more of its Directors
are Directors or officers or are financially interested shall
be either void or voidable because of such relationship or
interest or because such Director or Directors are present at
the meeting of the Board of Directors or a committee thereof
which authorizes, approves or ratifies such contract or
transaction or because their votes are counted for such
purpose, if:
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(i) The fact of such relationship or interest is disclosed or known to
the Board of Directors or committee which authorizes, approves or
ratifies the contract or transaction by a vote or consent
sufficient for the purpose without counting the votes or consents
of such interested Directors; or
(ii) The fact of such relationship or interest is disclosed or known to
the stockholders entitled to vote and they authorize, approve or
ratify such contract or transaction by vote or written consent; or
(iii) The contract or transaction is fair and reasonable as to the
Corporation at the time it is authorized by the Board, a
committee, or the stockholders.
(b) Interested Directors, whether or not voting, may be counted in
determining the presence of a quorum at a meeting of the Board of
Directors or a committee thereof which authorizes, approves or ratifies
such contract or transaction.
SECTION 6. Executive and Other Committees; Designation; Authority
(a) The Board of Directors, by resolution adopted by the full
Board of Directors, may designate from among its Directors an
Executive Committee and one or more other committees each of
which, to the extent provided in such resolution or in the
Certificate of Incorporation or these Bylaws, shall have and
may exercise all the authority of the Board of Directors,
except that no such committee shall have the authority to :
(i) approve or recommend to stockholders actions or proposals
required by the Delaware General Corporation Law to be
approved by stockholders; (ii) designate candidates for the
office of Director for purposes of proxy solicitation or
otherwise; (iii) fill vacancies on the Board of Directors or
any committee thereof; (iv) amend these Bylaws; (v) authorize
or approve the re-acquisition of shares unless pursuant to a
general formula or method specified by the Board of
Directors; or (vi) authorize or approve the issuance or sale
of, or any contract to issue or sell, shares or designate the
terms of a series of a class of shares, unless the Board of
Directors, having acted regarding general authorization for
the issuance or sale of shares, or any contract therefor,
and, in the case of a series, the designation thereof has
specified a general formula or method by resolution or by
adoption of a stock option or other plan, authorized a
committee to fix the terms upon which such shares may be
issued or sold, including, without limitation, the price, the
rate or manner of payment of dividends, provisions for
redemption, sinking fund, conversion, and voting or
preferential rights, and provisions for other features of a
class of shares, or a series of a class of shares, with full
power in such committee to adopt any final resolution setting
forth all the terms of a series for filing with the
Department of State under the Delaware General Corporation Law.
(b) The Board, by resolution adopted in accordance with Section 6(a) of this
Article II, may designate one or more Directors as alternate members of
any such committee, who may act in the place and stead of any absent
member or members at any meeting of such committee.
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(c) Neither the designation of any such committee, the delegation
thereto of authority, nor action by such committee pursuant
to such authority shall alone constitute compliance by a
member of the Board of Directors, not a member of the
committee in question, with his responsibility to act in good
faith, in manner he reasonably believes to be in the best
interests of the Corporation, and with such care as an
ordinarily prudent person in a like position would use under
similar circumstances.
(d) The Board of Directors shall at every organizational meeting thereof
designate the following committees comprised in each case of a majority
of independent Directors:
(1) An audit committee;
(2) A compensation committee; and
(3) A regulatory compliance committee.
SECTION 7. Place, Time, Notice and Call of Directors' Meeting.
(a) Meetings of the Board of Directors, regular or special, may be held
either within or without the State of Delaware.
(b) (i) A regular meeting of the Board of Directors of the Corporation
shall be held for the election of officers of the Corporation and
for the transaction of such other business as may come before such
meeting as promptly as practicable after the annual meeting of the
stockholders of this Corporation without the necessity of notice
other than this Bylaw.
(ii) Other regular meetings of the Board of Directors of the
Corporation may be held at such places as the Board of Directors
of the Corporation may from time to time resolve without notice
other than such resolution.
(iii) Special meetings of the Board of Directors may be held at any time
upon call of the Chairman of the Board of Directors or a majority
of the Directors of the Corporation, at such time and at such
place as shall be specified in the call thereof.
(iv) (A) Notice of any special meeting of the Board of
Directors must be given at least two days prior
thereto, if by written notice delivered
personally; or at least five days prior
thereto, if mailed; or at least two days prior
thereto, if by telegram; or at least two days
prior thereto, if by telephone or E-mail,
receipt confirmed.
(B) If such notice is given by mail, such notice shall be deemed to
have been delivered when deposited with the United States Postal
Service addressed to the business address of such Director with
postage thereon prepaid.
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(C) If notice be given by telegram, such notice shall be deemed
delivered when the telegram is delivered to the telegraph company.
(D) If notice is given by telephone (including facsimile
transmission), such notice shall be deemed delivered when the call
is completed.
(E) If notice is given by E-mail, such notice shall be deemed
delivered when confirmation of receipt is obtained.
(c) (1) Notice of a meeting of the Board of Directors need not be
given to any Director who signs a waiver of notice either before
or after the meeting.
(2) Attendance of a Director at a meeting shall constitute
a waiver of notice of such meeting and waiver of any
and all objections to the place of the meeting, the
time of the meeting, or the manner in which it has
been called or convened, except when a Director
states, at the beginning of the meeting, any objection
to the transaction of business because the meeting is
not lawfully called or convened.
(d) Neither the business to be transacted at, nor the purpose of, any regular
or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
(e) (1) A majority of the Directors present, whether or not a quorum
exists, may adjourn any meeting of the Board of Directors to
another time and place.
(2) Notice of any such adjourned meeting shall be given to the
Directors who were not present at the time of the adjournment and,
unless the time and place of the adjourned meeting are announced
at the time of the adjournment, to the other Directors.
(f) (1) Members of the Board of Directors may participate in a meeting
of such Board by means of a conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can communicate with each other at
the same time.
(2) Participation by such means shall constitute presence in person at
a meeting.
SECTION 8. Action by Directors Without a Meeting
(a) (1) Any action required by the Delaware General
Corporation Law to be taken at a meeting of the
Directors of the Corporation, or any action which may
be taken at a meeting of the Directors or a committee
thereof, may be taken without a meeting if a consent
in writing, setting forth the action so to be taken,
signed by all of the Directors, or all of the members
of the committee, as the case may be, and is filed in
the minutes of the proceedings of the Board or of the
committee.
(2) Such consent shall have the same effect as a unanimous vote.
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(b) If not contrary to applicable law, Directors may take action
as the Board of Directors or committees thereof through a
written consent to action signed by a number of Directors
sufficient to have carried a vote of the Board of Directors
or committee thereof with all members present and voting;
provided, that all Directors not joining in such written
instrument shall be deemed for all purposes to have cast
dissenting votes, and that all Directors not parties to such
instrument shall receive written notice of all action taken
through such instrument within three days after such
instrument shall have been subscribed by the requisite number
of Directors required for such action.
SECTION 9. Compensation
(a) The Directors and members of the Executive and any other committee of the
Board of Directors shall be entitled to such reasonable compensation for
their services and on such basis as shall be fixed from time to time by
resolution of the Board of Directors.
(b) The Board of Directors and members of any committee of that Board of
Directors shall be entitled to reimbursement for any reasonable expenses
incurred in attending any Board or committee meeting.
(c) Any Director receiving compensation under this Section shall not be
prevented from serving the Corporation in any other capacity and shall
not be prohibited from receiving reasonable compensation for such other
services.
SECTION 10. Resignation
(a) Unless he is the sole serving Director, any Director of the Corporation
may resign at any time by providing the Board of Directors with written
notice indicating the Director's intention to resign and the effective
date thereof.
(b) A sole serving Director of the Corporation must, at least concurrently
with his or her resignation, elect one or more successor Director(s) at
least one of whom must assume his or her office concurrently with the
subject resignation, and the resignation shall be effected by providing
the successor Director(s) with written notice indicating the Director's
intention to resign and the effective date thereof.
ARTICLE III
OFFICERS
SECTION 1. Election; Number; Terms of Office
(a) (1) The officers of the Corporation shall consist of a
Chairman of the Board of Directors whose title may be
designated as "Chairman," a Chief Executive officer, a
President, a Chief Operating Officer, a Chief
Financial Officer, one or more Vice-Presidents, a
Secretary and a Treasurer, each of whom shall be
elected by the Board of Directors at such time and in
such manner as may be prescribed by these Bylaws.
(2) Such other officers and assistant officers and agents as may be
deemed necessary may be elected or appointed by the Board of
Directors.
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(3) The officers of the Corporation shall be hereinafter collectively
referred to as the "Officers."
(b) All Officers and agents, as between themselves and the Corporation, shall
have such authority and perform such duties in the management of the
Corporation as are provided in these Bylaws, or as may be determined by
resolution of the Board of Directors not inconsistent with these Bylaws.
(c) Any two or more offices may be held by the same person, except for the
offices of President and Secretary.
(d) A failure to elect a Chairman of the Board, Chief Executive Officer,
President, Chief Operating Officer, Chief Financial Officer, a Vice
President, a Secretary or a Treasurer shall not affect the existence of
the Corporation.
SECTION 2. Removal
(a) An Officer of the Corporation shall hold office until the election and
qualification of his successor; however, any Officer of the Corporation
may be removed from office by the Board of Directors whenever in its
judgment the best interests of the Corporation will be served thereby.
(b) Such removal shall be without prejudice to the contract rights, if any,
of the person so removed.
(c) Election or appointment of an officer shall not of itself create any
contract right to employment or compensation or create an employer -
employee relationship.
SECTION 3. Vacancies
Any vacancy in any office from any cause may be filled for the unexpired
portion of the term of such office by the Board of Directors.
SECTION 4. Powers and duties
(a) (1) The Chairman of the Board of Directors shall preside over
meetings of the Board of Directors and the stockholders.
(2) Unless a separate Chief Executive Officer is elected, the Chairman
shall exercise the powers hereafter granted to that office.
(3) Unless a Chairman of the Board is specifically elected, the
President shall be deemed to be the Chairman of the Board.
(b) (1) The Chief Executive Officer shall be the principal Officer of
the Corporation to whom all other Officers shall be subordinate.
(2) In the event no Chief Executive Officer is separately elected,
such office shall be assumed by the Chairman of the Board, and if
no such office has been filled, by the President.
(3) Except where by law the signature of the President is
required or unless the Board of Directors shall rule
otherwise, the Chief Executive Officer shall possess
the same power as the President to sign all
certificates, contracts and other instruments of the
Corporation which may be authorized by the Board of
Directors.
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(c) (1) The Chief Operating Officer of the Corporation shall be
responsible for management of the day to day affairs of the
Corporation, subject to compliance with the directions of the
Board of Directors and of the Chief Executive Officer.
(2) He shall be responsible for the general day-to-day supervision of
the business and affairs of the Corporation.
(3) He shall sign or countersign all certificates, contracts or other
instruments of the Corporation, as authorized by the Board of
Directors or as assigned by the Chief Executive Officer.
(4) He may, but need not, be a member of the Board of Directors.
(5) Unless otherwise provided by specific resolution of the Board of
Directors, the President shall be the Chief Operating Officer of
the Corporation.
(d) (1) In the absence of a separately elected or available Chief
Executive Officer or Chairman of the Board, the President shall be
the Chief Executive Officer of the Corporation and shall preside
at all meetings of the stockholders and the Board of Directors.
(2) The Board of Directors will at all times retain the power to
expressly delegate the duties of the President to any other
Officer of the Corporation.
(e) (1) The Chief Financial Officer shall be responsible for
coordinating all financial aspects of the Corporation's
operations, including strategic financial planning, supervision of
the Corporation's Treasurer, Comptroller and outside auditors.
(2) In the event an Audit Committee of the Board of Directors is
designated and serving, he shall be responsible for keeping such
committee fully and timely informed of all matters under its
jurisdiction.
(3) The Chief Financial Officer shall, unless otherwise specifically
provided by the Board of Directors, serve as the Corporation's
principal compliance officer and shall be responsible for
overseeing preparation and filing of all reports of the
Corporation's activities required to be filed, either periodically
or on a special basis with the United States Internal Revenue
Service, the Securities and Exchange Commission and with other
federal, state or local governmental agencies.
(f) (1) The Vice President(s), if any, in the order designated by the
Board of Directors, shall exercise the functions of the President
in the event of the absence, disability, death, or refusal to act
of the President.
(2) During the time that any Vice President is properly exercising the
functions of the President, such Vice President shall have all the
powers of and be subject to all restrictions upon the President.
(3) Each Vice President shall have such other duties as are assigned
to him from time to time by the Board of Directors or by the
President of the Corporation and shall be subject to such
specializing designations (e.g., "senior," executive," etc.) as
the Board of Directors may select.
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(g) (1) The Secretary of the Corporation shall keep the minutes of the
meetings of the stockholders of the Corporation, and, unless
provided otherwise by the Chairman at any meeting of the Board of
Directors, the Secretary shall keep the minutes of the meetings of
the Board of Directors of the Corporation.
(2) The Secretary shall be the custodian of the minute books of the
Corporation and such other books and records of the Corporation as
the Board of Directors of the Corporation may direct.
(3) The Secretary of the Corporation shall have the general
responsibility for maintaining the stock transfer books of the
Corporation, or of supervising the maintenance of the stock
transfer books of the Corporation by the transfer agent, if any,
of the Corporation.
(3) The Secretary shall be the custodian of the corporate seal of the
Corporation and shall affix the corporate seal of the Corporation
on contracts and other instruments as the Board of Directors may
direct.
(4) The Secretary shall perform such other duties as are assigned from
time by the Board of Directors, the Chief Executive Officer, the
Chairman, the Chief Operating Officer or the President of the
Corporation.
(h) (1) The Treasurer of the Corporation shall be directly subordinate
to the Chief Financial Officer.
(2) In the absence of a Chief Financial Officer, such office shall be
filled by the Treasurer.
(3) Unless otherwise specified by the Board of Directors, the
Treasurer shall have custody of all funds and securities owned by
the Corporation.
(4) The Treasurer shall cause to be entered regularly in the proper
books of account of the Corporation full and accurate accounts of
the receipts and disbursements of the Corporation.
(5) The Treasurer of the Corporation shall render a statement of the
cash, financial and other accounts of the Corporation whenever he
is directed to render such a statement by the Board of Directors
or by the President of the Corporation.
(6) The Treasurer shall at all reasonable times make available the
Corporation's books and financial accounts to any Director of the
Corporation during normal business hours.
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(7) The Treasurer shall perform all other acts incident to the Office
of Treasurer of the Corporation, and he shall have such other
duties as are assigned to him from time to time by the Board of
Directors, the Chief Executive Officer, the Chairman, the Chief
Operating Officer or the President of the Corporation.
(i) (1) The Corporation's Board of Directors shall designate a person
licensed to practice law in one of the states comprising the
United States as the Corporation's General Counsel and Chief Legal
Officer;
(2) The Corporation's General Counsel and Chief Legal Officer shall
coordinate the Corporation's legal affairs under the directions of
the Board of Directors and in coordination with the Chief
Executive Officer, to whom he or she shall report;
(3) The Board of Directors may appoint such subordinate legal officers
and assign them such functions as it may deem appropriate.
(j) Other subordinate or assistant Officers appointed by the
Board of Directors or by the Chief Executive Officer, the
Chairman, the Chief Operating Officer or the President, if
such authority is delegated to them by the Board of
Directors, shall exercise such powers and perform such duties
as may be delegated to them by the Board of Directors, the
Chief Executive Officer, the Chief Operating Officer or by
the President, as the case may be.
(k) In case of the absence or disability of any Officer of the Corporation
and of any person authorized to act in his place during such period of
absence or disability, the Board of Directors may from time to time
delegate the powers and duties of such Officer or any Director or any
other person whom it may select.
SECTION 5. Salaries
(a) The salaries of all Officers of the Corporation shall, except as
otherwise determined or required by an agreement entered into among all
the stockholders of the Corporation, be fixed by the Board of Directors.
(b) No Officer shall be ineligible to receive such salary by reason of the
fact that he is also a Director of the Corporation and receiving
compensation therefor.
ARTICLE IV
LOANS TO EMPLOYEES AND OFFICERS;
GUARANTEE OF OBLIGATIONS OF EMPLOYEES AND OFFICERS
(a) This Corporation may lend money to, guarantee any obligation of, or
otherwise assist any Officer or other employee of the Corporation or of a
subsidiary, including any Officer or employee who is a Director of the
Corporation or of a subsidiary, whenever, in the judgment of the
Directors, such loan, guarantee or assistance may reasonably be expected
to benefit the Corporation.
(b) The loan, guarantee or other assistance may be with or without interest,
and may be unsecured, or secured in such manner as the Board of Directors
shall approve including, without limitation, a pledge of shares of stock
of the Corporation.
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(c) Nothing in this Article shall be deemed to deny, limit or restrict the
powers of guarantee or warranty of this Corporation at common law or
under any statute.
ARTICLE V
STOCK CERTIFICATES; VOTING TRUSTS; TRANSFERS
SECTION 1. Certificates Representing Shares
(a) (1) Every holder of shares of this Corporation shall be
entitled to one or more certificates, representing all
shares to which he is entitled and such certificates
shall be signed by the Chairman, Chief Executive
Officer, Chief Operating Officer, the President or a
Vice President and the Secretary or an Assistant
Secretary of the Corporation and may be sealed with
the seal of the Corporation or a facsimile thereof.
(2) The signatures of the Chairman, the Chief Executive
Officer, the Chief Operating Officer, the President or
Vice President and the Secretary or Assistant
Secretary may be facsimiles if the certificate is
manually signed on behalf of a transfer agent or a
registrar other than the Corporation itself or an
employee of the Corporation.
(3) In case any Officer who signed or whose facsimile signature has
been placed upon such certificate shall have ceased to be such
Officer before such certificate is issued, it may be issued by the
Corporation with the same effect as if it were executed by the
appropriate Officer at the date of its issuance.
(b) Every certificate representing shares issued by this
Corporation shall, if shares are divided into one or more
classes or series with differing rights, state that the
Corporation will furnish to any stockholder upon request and
without charge a full statement of: (i) the designations,
preferences, limitations, and relative rights of the shares
of each class or series authorized to be issued, and (ii) the
variations in the relative rights and preferences between the
shares of each such series, if the Corporation is authorized
to issue any preferred or special class in series and so far
as the same have been fixed and determined, and the authority
of the Board of Directors to fix and determine, the relative
rights and preferences of subsequent series.
(c) Every certificate representing shares which are restricted as
to sale, disposition or other transfer (including
restrictions based on federal or state securities and other
laws) shall state that such shares are restricted as to
transfer and shall set forth or fairly summarize upon the
certificate, or shall state that the Corporation will furnish
to any stockholder upon request and without charge a full
statement of, such restrictions.
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(d) Each certificate representing shares shall state upon the face thereof:
(i) the name of the Corporation;
(ii) that the Corporation is organized under the laws of the State of
Delaware;
(iii) the name of the person or persons to whom issued;
(iv) the number and class of shares, and the designation of the series,
if any, which such certificate represents; and
(v) the par value of each share represented by such certificate, or a
statement that the shares are without par value.
(e) No certificate shall be issued for any shares until they are
fully paid for and in the event that a certificate is
erroneously issued or compensation paid is subsequently
discovered to be other than as represented (e.g., dishonored
checks, securities of a corporation acquired in a
reorganization where the representations and warranties
provided prove to be materially false, etc.), then the Board
of Directors shall promulgate a certified resolution
detailing the nature of the misrepresented consideration, and
shall submit such certified resolution to the person
responsible for recording and effecting transactions in the
Corporation's securities; whereupon such securities will be
restricted from transfer and treated as no longer outstanding
for all purposes unless the Corporation becomes subject to a
judgment of a court of competent jurisdiction providing
otherwise.
SECTION 2. Transfer Books
(a) The Corporation shall keep at its registered office or
principal place of business or in the office of its transfer
agent or registrar, a book (or books where more than one
kind, class, or series of stock is outstanding) to be known
as the Stock Book, containing the names, alphabetically
arranged, addresses and Social Security numbers of every
stockholder and the number of shares each kind, class or
series of stock held of record.
(b) Where the Stock Book is kept in the office of the transfer agent, the
Corporation shall keep at its principal office copies of the stock lists
prepared from said Stock Book and sent to it from time to time (but not
less frequently than every month) by said transfer agent.
(c) The Stock Book or stock lists shall show the current status of the
ownership of shares of the Corporation provided that, if the transfer
agent of the Corporation be located elsewhere, a reasonable time shall be
allowed for transit or mail.
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SECTION 3. Transfer of Shares
(a) The name(s) and address(es) of the person(s) to whom shares of stock of
this Corporation are issued, shall be entered on the Stock Transfer Books
of the Corporation, with the number of shares and date of issue.
(b) (1) Transfer of shares of the Corporation shall be made on
the Stock Transfer Books of the Corporation by the
Secretary or the transfer agent, subject to compliance
with any restrictions specified on such certificate,
only when the holder of record thereof or the legal
representative of such holder of record or the
attorney-in-fact of such holder of record, authorized
by power of attorney duly executed and filed with the
Secretary or transfer agent of the Corporation, shall
surrender the Certificate representing such shares for
cancellation.
(2) Lost, destroyed or stolen Stock Certificates shall be replaced
pursuant to Section 5 of this Article V.
(c) The person or persons in whose names shares stand on the books of the
Corporation shall be deemed by the Corporation to be the owner of such
shares for all purposes, except as otherwise provided pursuant to
Sections 10 and 11 of Article I, or Section 4 of Article V.
(d) Shares of the Corporation's capital stock shall be freely transferable
without required Board of Directors' consent, unless such shares are
subject to transfer restrictions under Securities and Exchange Commission
Rule 144 or a consent requirement has been imposed pursuant to a binding
written contract subscribed to by the holder or his or her predecessor in
interest.
(e) (1) All transactions in securities subject to any restrictions
imposed under Securities and Exchange Commission Rule 144
("restricted securities" and "Rule 144," respectively) shall, as a
condition to transfer, require the following documentation, to be
reviewed and approved by legal counsel to the Corporation:
(A) An affidavit from the holder (the "Holder") providing
details concerning acquisition of the subject shares;
providing evidence of the date when consideration for
the shares was paid in full; detailing all
transactions in the Corporation's securities during
the immediately preceding 90 days; affirming a present
intent to dispose of the subject securities; affirming
that a Form 144 has been filed with the Securities and
Exchange Commission covering the proposed transaction
(and providing a copy thereof); affirming compliance
with any reporting obligations under Sections 13(d),
13(g) or 16(b) of the Securities Exchange Act of 1934,
as amended, and providing such other facts or
representations as legal counsel to the Corporation
may reasonably require;
(B) A written confirmation by the Corporation's transfer
agent based on records available thereto of all
transactions in the Corporation's securities by the
Holder and anyone with whom the holder is required to
aggregate sales or securities holdings for purposes of
Rule 144, as well as confirmation of the percentage of
outstanding securities of the Corporation held of
record by the Holder and anyone with whom the holder
is required to aggregate sales or securities holdings
for purposes of Rule 144;
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(C) Except as provided below, a written confirmation from the broker
through whom the Holder is effecting the proposed transaction
verifying that the transaction will be effected in full compliance
with Rule 144; and
(D) A legal opinion from counsel to the Holder (who may not also be
the counsel to the Corporation) specifically addressing all
aspects of Rule 144 and detailing the manner in which they are
being complied with or the reasons that they are not applicable.
(2) Transactions in restricted securities that are not being effected
in reliance on Rule 144 shall require, as a condition to transfer,
the following documentation, to be reviewed and approved by legal
counsel to the Corporation:
(A) An affidavit from the holder (the "Holder") providing
details concerning acquisition of the subject shares;
providing evidence of the date when consideration for
the shares was paid in full; the identity and
qualifications of the person to whom the securities
are being transferred; the manner in which such person
has been provided with required information concerning
the Corporation; affirming compliance with any
reporting obligations under Sections 13(d), 13(g) or
16(b) of the Securities Exchange Act of 1934, as
amended, and providing such other facts or
representations as legal counsel to the Corporation
may reasonably require;
(B) A legal opinion from counsel to the Holder (who may
not also be the counsel to the Corporation) addressed
to the Corporation in a manner creating enforceable
privity between such legal counsel and the
Corporation, specifically addressing all aspects of
the exemptions relied on to effect the proposed
transaction without registration under applicable
federal and state securities laws and regulations, and
detailing the manner in which they are being complied
with or the reasons that they are not applicable.
(3) No transactions in the Corporation's restricted
securities failing to materially comply with the
foregoing requirements will be honored, nor will any
holding period required under Rule 144 be deemed to
commence until all such requirements are materially
complied with (material compliance to be determined in
the sole discretion of the Corporation's Board of
Directors).
SECTION 4. Voting Trusts
(a) (10 Any number of stockholders of the Corporation may
create a voting trust for the purpose of conferring
upon a trustee or trustees the right to vote or
otherwise represent their shares, for a period not to
exceed ten years, by: (i) entering into a written
voting trust agreement specifying the terms and
conditions of the voting trust; (ii) depositing a
counterpart of the agreement with the Corporation at
its registered office; and (iii) transferring their
shares to such trustee or trustees for the purposes of
this Agreement.
(2) Prior to the recording of the agreement, the stockholder concerned
shall render the stock certificate(s) described therein to the
Corporate Secretary who shall note on each certificate:
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"This Certificate is subject to the provisions of a
voting trust agreement dated ..........., recorded
in Minute Book ............, of the Corporation.
(b) (1) Upon the transfer of such shares, voting trust certificates
shall be issued by the trustee or trustees to the stockholders who
transfer their shares in trust.
(2) Such trustee or trustees shall keep a record of the
holders of voting trust certificates evidencing a
beneficial interest in the voting trust, giving the
names and addresses of all such holders and the number
and class or the shares in respect of which the voting
trust certificates held by each are issued, and shall
deposit a copy of such record with the Corporation at
its registered office.
(c) The counterpart of the voting trust agreement and the copy of
such record so deposited with the Corporation shall be
subject to the same right of examination by a stockholder of
the Corporation, in person or by agent or attorney, as are
the books and records of the Corporation, and such
counterpart and such copy of such record shall be subject to
examination by any holder of record of voting trust
certificates either in person or by agent or attorney, at any
reasonable time for any proper purpose.
(d) (1) At any time before the expiration of a voting trust
agreement as originally fixed or as extended one or
more times under this Section 4(d), one or more
holders of voting trust certificates may, by agreement
in writing, extend the duration of such voting trust
agreement, nominating the same or substitute trustees,
for an additional period not exceeding 10 years.
(2) Such extension agreement shall not affect the rights
or obligations or persons not parties to the
agreement, and such persons shall be entitled to
remove their shares from the trust and promptly to
have their stock certificates reissued upon the
expiration of the original term of the voting trust
agreement.
(3) The extension agreement shall in every respect comply with and be
subject to all the provisions of this Section 4, applicable to the
original voting trust agreement except that the 10 year maximum
period of duration shall commence on the date of adoption of the
extension agreement.
(e) The trustees under the terms of the agreements entered into under the
provisions of this Section 4, shall not acquire the legal title to the
shares but shall be vested only with the legal right and title to the
voting power which is incident to the ownership of the shares.
(f) Notwithstanding generally applicable prohibitions against a
corporation's voting of treasury stock, if the Corporation is
the trustee under a voting trust, it shall have full
authority to vote such shares in accordance with the terms of
the voting trust agreement, even if such agreement vests
absolute and unfettered voting discretion in the trustee and
notwithstanding that the voting trust was created at the
prompting or direction of the Corporation, its officers or
Directors.
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SECTION 5. Lost, Destroyed, or Stolen Certificates
No Certificate representing shares of stock in the Corporation shall be
issued in place of any Certificate alleged to have been lost, destroyed, or
stolen except on production of evidence, satisfactory to the Board of Directors,
of such loss, destruction or theft, and, if the Board of Directors so requires,
upon the furnishing of an indemnity bond in such amount (but not to exceed twice
the fair market value of the shares represented by the Certificate) and with
such terms and with such surety as the Board of Directors may, in its
discretion, require.
ARTICLE VI
BOOKS AND RECORDS
(a) The Corporation shall keep correct and complete books and records of
account and shall keep minutes of the proceedings of its stockholders,
Board of Directors and committees of Directors.
(b) Any books, records and minutes may be in written form or in any other
form capable of being converted into written form within a reasonable
time.
(c) Any person who shall have been a holder of record of shares,
or the holder of record of voting trust certificates for, at
least five percent of the outstanding shares of any class or
series of the Corporation, upon written demand stating the
purpose thereof, shall; subject to the qualifications
contained in subsection (d) hereof, have the right to
examine, in person or by agent or attorney, at any reasonable
time or times, for any purpose, its relevant books and
records of account, minutes and records of stockholders and
to make extracts therefrom.
(d) (1) No stockholder who within two years has sold or
offered for sale any list of stockholders or of
holders of voting trust certificates for shares of
this Corporation or any other corporation; has aided
or abetted any person in procuring any list of
stockholders or of holders of voting trust
certificates for any such purpose; or has improperly
used any information secured through any prior
examination of the books and records of account,
minutes, or record of stockholders or of holders of
voting trust certificates for shares of the
Corporation of any other corporation; shall be
entitled to examine the documents and records of the
Corporation as provided in Section (c) of this Article
VI.
(2) No stockholder who does not act in good faith or for a proper
purpose in making his demand shall be entitled to examine the
documents and records of the Corporation as provided in Section
(c) of this Article VI.
(e) Unless modified by resolution of the stockholders, this
Corporation shall prepare not later than 90 days after the
close of each fiscal year, audited financial statements,
including all required schedules, prepared in accordance with
Generally Accepted Accounting Principals ("GAAP")
consistently applied; and shall prepare not later than 45
days after the close of each fiscal quarter (other than the
fourth quarter), quarterly unaudited financial statements,
including all required schedules, prepared in accordance with
Generally Accepted Accounting Principals ("GAAP").
(f) Upon the written request of any stockholder or holder of voting trust
certificates for shares of the Corporation, the Corporation shall mail to
such stockholder or holder of voting trust certificates a copy of its
most recent balance sheet and profit and loss statement.
(g) Such financial statements shall be filed and kept for at least five years
in the registered office of the Corporation in the State of Delaware and
shall be subject to inspection during business hours by any stockholder
or holder of voting trust certificates, in person or by agent.
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ARTICLE VII
DIVIDENDS
The Board of Directors of the Corporation may, from time to time,
declare, and the Corporation may pay dividends on its own shares, except when
the Corporation is insolvent or when the payment thereof would render the
Corporation insolvent, subject to the following provisions:
(a) Dividends in cash or property may be declared and paid,
except as otherwise provided in this Article VII, only out of
the unreserved and unrestricted earned surplus of the
Corporation or out of capital surplus, however arising, but
each dividend paid out of capital surplus shall be identified
as a distribution of capital surplus, and the amount per
share paid from such capital surplus shall be disclosed to
the stockholders receiving the same concurrently with the
distribution.
(b) If the Corporation shall engage in the business of exploiting
natural resources or other wasting assets and if the
Certificate so provides, dividends may be declared and paid
in cash out of depletion or similar reserves, but each such
dividend shall be identified as distribution of such reserves
and the amount per share paid from such reserves shall be
disclosed to the stockholders receiving the same concurrently
with the distribution thereof.
(c) Dividends may be declared and paid in the Corporation's treasury shares.
(d) Dividends may be declared and paid in the Corporation's authorized but
unissued shares, out of any unreserved and unrestricted surplus of the
Corporation, upon the following conditions:
(i) If a dividend is payable in the Corporations' own shares having a
par value, such shares shall be issued at not less than the par
value thereof and there shall be transferred to stated capital at
the time such dividend is paid an amount of surplus equal to the
aggregate par value of the shares to be issued as a dividend.
(ii) If a dividend is payable in the Corporations' own
shares without par value, such shares shall be issued
at a stated value fixed by the Board of Directors by
resolution adopted at the time such dividend is
declared, and there shall be transferred to stated
capital at the time such dividend is paid an amount of
surplus equal to the aggregate stated value so fixed
and the amount per share so transferred to stated
capital shall be disclosed to the stockholders
receiving such dividend concurrently with the payment
thereof.
(e) No dividend payable in shares of any class shall be paid to the holders
of shares of any other class unless the Certificate of Incorporation so
provides or such payment is authorized by the affirmative vote or the
written consent of the holders of at least a majority of the outstanding
shares of the class to which the payment is to be made.
(f) A split or division of the issued shares of any class into a greater
number of shares of the same class without increasing the stated capital
of the Corporation shall not be construed to be a stock dividend within
the meaning of this Article VII.
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ARTICLE VIII
SEAL
The Board of Directors shall adopt a Corporate Seal which shall be
circular in form and shall have inscribed thereon the name of the Corporation,
the state of incorporation and the year of incorporation.
ARTICLE IX
INDEMNIFICATION
This Corporation shall indemnify its officers, Directors and authorized
agents for all liabilities incurred directly, indirectly or incidentally to
services performed for the Corporation, to the fullest extent permitted under
Delaware law existing now or hereinafter enacted.
ARTICLE X
MENDMENT OF BYLAWS
The Board of Directors shall have the power to amend, alter, or repeal
these Bylaws, and to adopt new Bylaws.
ARTICLE XI
FISCAL YEAR
The fiscal year of this Corporation shall be determined by the Board of
Directors.
ARTICLE XII
MEDICAL REIMBURSEMENT
SECTION 1. Benefits
(a) The Corporation may, subject to approval of the Board of Directors
reimburse all employees for expenses incurred by themselves and their
dependents, as defined in Section 152 of the Internal Revenue Code of
1986, as amended (the "IRC"), for medical care, as defined in IRC Section
213(e) or any successor section thereto, subject to the conditions and
limitations hereinafter set forth.
(b) It is the intention of the Corporation that the benefits payable to
employees hereunder will be excluded from their gross income pursuant IRC
Section 105 or any successor section thereto.
SECTION 2. Employees Defined
The term "employees" as used in this medical expense plan is hereby
defined to include all individuals employed by the corporation except the
following:
(a) Employees who have not completed three months of service as is provided
in IRC Section 105(h)(3) (b)(i), or any successor section thereto;
(b) Employees who have not attained the age of 25 years;
(c) Employees who are part-time or seasonal as is defined in IRC Section
105(h)(3)(B)(iii) or any successor section thereto;
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(d) Employees who are included in a unit of employees covered by an agreement
between employee representatives and one or more employers found to be a
collective bargaining agreement; where accident and health benefits were
the subject of good faith bargaining between such employee
representatives and such employer(s) as is defined in IRC Section
105(h)(3)(B)(iv) or any successor section thereto;
(e) Employees who are nonresident aliens and who receive no earned income
from the employer which constitutes income from sources within the United
States as is further defined in IRC Section 105(h)(5)(B)(v) or any
successor section thereto.
SECTION 3. Limitations
(a) The Corporation will reimburse any employee no more than $5,000.00 in any
fiscal year for medical care expenses;
(b) Reimbursement or payment provided under this plan will be made by the
Corporation only in the event and to the extent that such reimbursement
or payment is not provided under any insurance policy(ies), whether owned
by the Corporation or the employee, or under any other health and
accident or wage continuation plan;
(c) In the event that there is such an insurance policy or plan in effect
providing for reimbursement in whole or in part, then to the extent of
the coverage under such policy or plan, the Corporation will be relieved
of any and all liability hereunder.
SECTION 4. Submission of Proof
(a) Any employee applying for reimbursement under this plan will submit to
the Corporation, at least quarterly, all bills for medical care,
including premium notices for accident or health insurance, for
verification by the Corporation prior to payment.
(b) Failure to comply herewith, may at the discretion of the Board of
Directors, terminate such employee's right to said reimbursement.
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SECTION 5. Discontinuation
This plan will be subject to termination at any time by vote
of the Board of Directors; provided, however, that medical care
expenses incurred prior to such termination will be reimbursed or
paid in accordance with the terms of this plan.
SECTION 6. Determination
(a) The Chief Executive Officer will determine all questions arising from the
administration and interpretation of the Plan except where reimbursement
is claimed by the Chief Executive Officer.
(b) Where reimbursement is claimed by the Chief Executive Officer
determination will be made by the Board of Directors.
* *
*
The Undersigned, being the duly elected and acting Secretary of the
Corporation, hereby certifies that the foregoing constitute the validly adopted
and true Bylaws of the Corporation, as of the date set forth below.
Dated: December 8th 1998
/s/ G. Richard Chamberlin
-------------------------------
G. Richard Chamberlin
Secretary
(Corporate Seal)
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