EXHIBIT 3.2
BYLAWS
BYLAWS
OF
E-TREND NETWORKS, INC.
TABLE OF CONTENTS
ARTICLE I...................................................................................1
CORPORATE OFFICES........................................................................1
1.1REGISTERED OFFICE..................................................................1
1.2OTHER OFFICES......................................................................1
ARTICLE II..................................................................................1
MEETINGS OF STOCKHOLDERS.................................................................1
2.1PLACE OF MEETINGS..................................................................1
2.2ANNUAL MEETING.....................................................................1
2.3SPECIAL MEETING....................................................................2
2.4NOTICE OF STOCKHOLDERS' MEETINGS...................................................2
2.5MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.......................................2
2.6QUORUM.............................................................................2
2.7ADJOURNED MEETING; NOTICE..........................................................3
2.8VOTING.............................................................................3
2.9WAIVER OF NOTICE...................................................................3
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING..........................4
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS......................4
2.12 PROXIES..........................................................................5
2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE............................................5
ARTICLE III.................................................................................6
DIRECTORS................................................................................6
3.1POWERS.............................................................................6
3.2NUMBER OF DIRECTORS................................................................6
3.3ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS............................6
3.4RESIGNATION AND VACANCIES..........................................................6
3.5PLACE OF MEETINGS; MEETINGS BY TELEPHONE...........................................7
3.6FIRST MEETINGS.....................................................................7
3.7REGULAR MEETINGS...................................................................8
3.8SPECIAL MEETINGS; NOTICE...........................................................8
3.9QUORUM.............................................................................8
3.10 WAIVER OF NOTICE.................................................................9
3.11 ADJOURNED MEETING; NOTICE........................................................9
3.12 ACTION BY WRITTEN CONSENT WITHOUT A MEETING......................................9
3.13 FEES AND COMPENSATION OF DIRECTORS...............................................9
3.14 APPROVAL OF LOANS TO OFFICERS....................................................9
3.15 REMOVAL OF DIRECTORS............................................................10
ARTICLE IV.................................................................................10
COMMITTEES..............................................................................10
4.1COMMITTEES OF DIRECTORS...........................................................10
4.2COMMITTEE MINUTES.................................................................11
4.3MEETINGS AND ACTION OF COMMITTEES.................................................11
ARTICLE V..................................................................................11
OFFICERS................................................................................11
5.1OFFICERS..........................................................................11
5.2ELECTION OF OFFICERS..............................................................11
5.3SUBORDINATE OFFICERS..............................................................12
5.4REMOVAL AND RESIGNATION OF OFFICERS...............................................12
5.5VACANCIES IN OFFICES..............................................................12
5.6CHAIRMAN OF THE BOARD.............................................................12
5.7PRESIDENT.........................................................................12
5.8VICE PRESIDENT....................................................................13
5.9SECRETARY.........................................................................13
5.10 TREASURER.......................................................................13
5.11 ASSISTANT SECRETARY.............................................................14
5.12 ASSISTANT TREASURER.............................................................16
5.13 AUTHORITY AND DUTIES OF OFFICERS................................................14
ARTICLE VI.................................................................................14
INDEMNITY...............................................................................14
6.1INDEMNIFICATION OF DIRECTORS AND OFFICERS.........................................14
6.2INDEMNIFICATION OF OTHERS.........................................................15
6.3INSURANCE.........................................................................15
ARTICLE VII................................................................................15
RECORDS AND REPORTS.....................................................................15
7.1MAINTENANCE AND INSPECTION OF RECORDS.............................................15
7.2INSPECTION BY DIRECTORS...........................................................16
7.3ANNUAL STATEMENT TO STOCKHOLDERS..................................................16
7.4REPRESENTATION OF SHARES OF OTHER CORPORATIONS....................................16
ARTICLE VIII...............................................................................17
GENERAL MATTERS.........................................................................17
8.1CHECKS............................................................................17
8.2EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS..................................17
8.3STOCK CERTIFICATES; PARTLY PAID SHARES............................................17
8.4SPECIAL DESIGNATION ON CERTIFICATES...............................................18
8.5LOST CERTIFICATES.................................................................18
8.6CONSTRUCTION; DEFINITIONS.........................................................18
8.7DIVIDENDS.........................................................................19
8.8FISCAL YEAR.......................................................................19
8.9SEAL..............................................................................19
8.10TRANSFER OF STOCK................................................................19
8.11STOCK TRANSFER AGREEMENTS........................................................19
8.12REGISTERED STOCKHOLDERS..........................................................20
ARTICLE IX.................................................................................20
AMENDMENTS..............................................................................20
ARTICLE X..................................................................................20
DISSOLUTION.............................................................................20
ARTICLE XI.................................................................................21
CUSTODIAN...............................................................................21
11.1APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES......................................21
11.2DUTIES OF CUSTODIAN..............................................................21
BYLAWS
OF
E-TREND NETWORKS, INC.
--------------------------------------------------------------
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE
The registered office of the Corporation in the State of Delaware shall be
located at 9 East Loockerman Street, Suite 214, Dover, Delaware 19901, and the
name of its registered agent at that address is National Corporate Research,
Ltd.
1.2 OTHER OFFICES
The Board of Directors may at any time establish other offices at any place or
places where the Corporation is qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS
Meetings of Stockholders shall be held at any place, within or outside the State
of Delaware, and such time as designated by the Board of Directors. In the
absence of any such designation, Stockholders' meetings shall be held at the
registered office of the Corporation.
2.2 ANNUAL MEETING
The annual meeting of Stockholders shall be held each year on a date and at a
time designated by the Board of Directors. In the absence of such designation,
the annual meeting of Stockholders shall be held on the first Tuesday of May in
each year at the Corporation's principal business office. However, if such day
falls on a legal holiday, then the meeting shall be held at the same time and
place on the next succeeding full business day. At the annual meeting, Directors
shall be elected and any other business may be transacted, whether stated in the
notice of meeting or not, except as otherwise expressly provided by statute or
the Certificate of Incorporation.
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2.3 SPECIAL MEETING
A special meeting of the Stockholders may be called at any time by the Board of
Directors, or by the Chairman of the Board, or by the President, or by one or
more Stockholders holding shares in the aggregate entitled to cast not less than
a majority of the votes at that meeting.
If a special meeting is called by any person or persons other than the Board of
Directors or the President or the Chairman of the Board, then the request shall
be in writing, specifying the time of such meeting and the general nature of the
business proposed to be transacted, and shall be delivered personally or sent by
registered mail or by telegraphic or other facsimile transmission to the
Chairman of the Board, the President, any Vice President or the Secretary of the
Corporation. The Officer receiving the request shall cause notice to be promptly
given to the Stockholders entitled to vote, in accordance with the provisions of
Sections 2.4 and 2.5 of these Bylaws, that a meeting will be held at the time
requested by the person or persons calling the meeting, so long as that time is
not less than thirty-five (35) nor more than sixty (60) days after the receipt
of the request. If the notice is not given within twenty (20) days after receipt
of the request, then the person or persons requesting the meeting may give the
notice. Nothing contained in this paragraph of this Section 2.3 shall be
construed as limiting, fixing or affecting the time when a meeting of
Stockholders called by action of the Board of Directors may be held.
2.4 NOTICE OF STOCKHOLDERS' MEETINGS
All notices of Stockholders' meetings shall be in writing and shall be sent or
otherwise given in accordance with Section 2.5 of these Bylaws not less than ten
(10) nor more than sixty (60) days before the date of the meeting to each
Stockholder entitled to vote at such meeting. The notice shall specify the
place, date, and hour of the meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called.
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of Stockholders, if mailed, is given when
deposited in the United States mail, postage prepaid, directed to the
Stockholder at his address as it appears on the records of the Corporation. An
affidavit of the Secretary or an assistant Secretary or of the transfer agent of
the Corporation that the notice has been given shall, in the absence of fraud,
be prima facie evidence of the facts stated therein.
2.6 QUORUM
The holders of a one-third of the stock issued and outstanding and entitled to
vote thereat, present in person or represented by proxy, shall constitute a
quorum at all meetings of the Stockholders for the transaction of business,
except as otherwise provided by statute or by the Certificate of Incorporation.
If, however, such quorum is not present or represented at any meeting of the
Stockholders, then the Stockholders entitled to vote thereat, present in person
or
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represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, 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.
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
and place thereof are announced at the meeting at which the adjournment is
taken. At 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 Stockholder of record entitled to vote at the meeting.
2.8 VOTING
The Stockholders entitled to vote at any meeting of Stockholders shall be
determined in accordance with the provisions of Section 2.11 of these Bylaws,
subject to the provisions of Sections 217 and 218 of the Delaware General
Corporation Law (relating to voting rights of fiduciaries, pledgors and joint
owners of stock and to voting trusts and other voting agreements).At all
meetings of Stockholders all matters, except as otherwise provided by statute,
shall be determined by the affirmative vote of the majority of shares present in
person or by proxy and entitled to vote on the subject matter. Voting at
meetings of Stockholders need not be by written ballot.
2.9 WAIVER OF NOTICE
Whenever notice is required to be given under any provision of the Delaware
General Corporation Law or of the Certificate of Incorporation or these Bylaws,
a written waiver thereof, signed 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 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
Stockholders need be specified in any written waiver of notice unless so
required by the Certificate of Incorporation or these Bylaws.
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2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Any action required or permitted to be taken at any annual or special meeting of
Stockholders may be taken without a meeting, without prior notice and without
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 Delaware, its principal place of business, or an Officer or
agent of the Corporation having custody of the book in which proceedings of
meetings of Stockholders are recorded. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those Stockholders who have not
consented in writing. If the action which is consented to is such as would have
required the filing of a certificate under any section of the Delaware General
Corporation Law if such action had been voted on by Stockholders at a meeting
thereof, then the certificate filed under such section shall state, in lieu of
any statement required by such section concerning any vote of Stockholders, that
written notice and written consent have been given as provided in Section 228 of
the Delaware General Corporation Law.
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS
In order that the Corporation may determine the Stockholders entitled to notice
of or to vote at any meeting of Stockholders or any adjournment thereof, or
entitled to express consent to corporate action in writing without a meeting, 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 of Directors may fix, in advance, a record date, 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 action.
If the Board of Directors does not so fix a record date:
(i) The record date for determining Stockholders entitled to
notice of or to vote at a meeting of Stockholders shall be at
the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close
of business on the day next preceding the day on which the
meeting is held.
(ii) The record date for determining Stockholders entitled to
express consent to corporate action in writing without a
meeting, when no prior action by the Board
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of Directors is necessary, shall be the day on which the first
written consent is expressed.
(iii) The record date for determining Stockholders for any other
purpose shall be at the close of business on the day on which
the Board of Directors adopts the resolution relating thereto.
A determination of Stockholders of record entitled to notice of or to vote at a
meeting of Stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
2.12 PROXIES
Each Stockholder entitled to vote at a meeting of Stockholders or to express
consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for him by a written proxy, signed by
the Stockholder 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 proxy shall be deemed signed if the
Stockholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission or otherwise) by the Stockholder or the
Stockholder's attorney-in-fact. The revocability of a proxy that states on its
face that it is irrevocable shall be governed by the provisions of Section
212(e) of the Delaware General Corporation Law.
2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE
The Officer who has charge of the stock ledger of a Corporation shall prepare
and make, at least ten (10) days before every meeting of Stockholders, a
complete list of the Stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each Stockholder and the number
of shares registered in the name of each Stockholder. Such list shall be open to
the examination of any Stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any Stockholder who is present.
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ARTICLE III
DIRECTORS
3.1 POWERS
Subject to the provisions of the Delaware General Corporation Law and any
limitations in the Certificate of Incorporation or these Bylaws relating to
action required to be approved by the Stockholders or by the outstanding shares,
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 of Directors.
3.2 NUMBER OF DIRECTORS
The Board of Directors shall consist initially of one (1) Director, and
thereafter shall consist of such number as may be fixed from time to time by
resolution of the Board.
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
Except as provided in Section 3.4 of these Bylaws, Directors shall be elected at
each annual meeting of Stockholders to hold office until the next annual
meeting. Directors need not be Stockholders unless so required by the
Certificate of Incorporation or these Bylaws, wherein other qualifications for
Directors may be prescribed. Each Director, including a Director elected to fill
a vacancy, shall hold office until his successor is elected and qualified or
until his earlier resignation or removal.
Elections of Directors need not be by written ballot.
3.4 RESIGNATION AND VACANCIES
Any Director may resign at any time upon written notice to the Corporation. When
one or more Directors so 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.
Unless otherwise provided in the Certificate of Incorporation or these Bylaws:
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(i) Vacancies and newly created Directorships resulting from any
increase in the authorized number of Directors may be filled
by a majority of the Directors then in office, although less
than a quorum, or by a sole remaining Director.
(ii) Whenever the holders of any class or classes of stock or
series thereof are entitled to elect one or more Directors by
the provisions of the Certificate of Incorporation, vacancies
and newly created Directorships of such class or classes or
series may be filled by a majority of the Directors elected by
such class or classes or series thereof then in office, or by
a sole remaining Director so elected.
If at any time, by reason of death or resignation or other cause, the
Corporation should have no Directors in office, then any Officer or any
Stockholder or an executor, administrator, trustee or guardian of a Stockholder,
or other fiduciary entrusted with like responsibility for the person or estate
of a Stockholder, may call a special meeting of Stockholders in accordance with
the provisions of the Certificate of Incorporation or these Bylaws, or may apply
to the Court of Chancery for a decree summarily ordering an election as provided
in Section 211 of the Delaware General Corporation Law.
If, at the time of filling any vacancy or any newly created Directorship, the
Directors then in office constitute less than a majority of the whole Board (as
constituted immediately prior to any such increase), then the Court of Chancery
may, upon application of any Stockholder or Stockholders holding at least ten
(10) percent of the total number of the shares at the time outstanding having
the right to vote for such Directors, summarily order an election to be held to
fill any such vacancies or newly created Directorships, or to replace the
Directors chosen by the Directors then in office as aforesaid, which election
shall be governed by the provisions of Section 211 of the Delaware General
Corporation Law as far as applicable.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
The Board of Directors of the Corporation may hold meetings, both regular and
special, either within or outside the State of Delaware.
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws,
members of the Board of Directors, or any Committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors, or any
Committee, by means of conference telephone or similar 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 FIRST MEETINGS
The first meeting of each newly elected Board of Directors shall be held at such
time and place as shall be fixed by the vote of the Stockholders at the annual
meeting and no notice of such meeting shall be necessary to the newly elected
Directors in order legally to constitute the
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meeting, provided a quorum shall be present. In the event of the failure of the
Stockholders to fix the time or place of such first meeting of the newly elected
Board of Directors, or in the event such meeting is not held at the time and
place so fixed by the Stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors, or as shall be specified in a
written waiver signed by all of the Directors.
3.7 REGULAR MEETINGS
Regular meetings of the Board of Directors may be held without notice at such
time and at such place as shall from time to time be determined by the Board.
3.8 SPECIAL MEETINGS; NOTICE
Special meetings of the Board of Directors for any purpose or purposes may be
called at any time by the Chairman of the Board, the President, any Vice
President, the Secretary or any two (2) Directors.
Notice of the time and place of special meetings shall be delivered personally
or by telephone to each Director or sent by first-class mail or telegram,
charges prepaid, addressed to each Director at that Director's address as it is
shown on the records of the Corporation. If the notice is mailed, it shall be
deposited in the United States mail at least four (4) days before the time of
the holding of the meeting. If the notice is delivered personally or by
telephone or by telegram, it shall be delivered personally or by telephone or to
the telegraph company at least forty-eight (48) hours before the time of the
holding of the meeting. Any oral notice given personally or by telephone may be
communicated either to the Director or to a person at the office of the Director
who the person giving the notice has reason to believe will promptly communicate
it to the Director. The notice need not specify the purpose or the place of the
meeting, if the meeting is to be held at the principal executive office of the
Corporation.
3.9 QUORUM
At all meetings of the Board of Directors, a majority of the authorized number
of Directors shall constitute a quorum for the transaction of business and the
act of a majority of the Directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the Certificate of Incorporation. If a
quorum is not present at any meeting of the Board of Directors, then 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.
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3.10 WAIVER OF NOTICE
Whenever notice is required to be given under any provision of the Delaware
General Corporation Law or of the Certificate of Incorporation or these Bylaws,
a written waiver thereof, signed 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 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 unless so required by the Certificate of Incorporation
or these Bylaws.
3.11 ADJOURNED MEETING; NOTICE
If a quorum is not present at any meeting of the Board of Directors, then 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 ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws,
any action required or permitted to be taken at any meeting of the Board of
Directors, 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 and the writing or writings are filed with the minutes of proceedings of
the Board or Committee.
3.13 FEES AND COMPENSATION OF DIRECTORS
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws,
the Board of Directors shall have the authority to fix the compensation of
Directors.
3.14 APPROVAL OF LOANS TO OFFICERS
The Corporation may lend money to, or guarantee any obligation of, or otherwise
assist any Officer or other employee of the Corporation or of its subsidiary,
including any Officer or employee who is a Director of the Corporation or its
subsidiary, whenever, in the judgment of the Directors, such loan, guaranty or
assistance may reasonably be expected to benefit the Corporation. The loan,
guaranty 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.
Nothing in this section contained shall
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be deemed to deny, limit or restrict the powers of guaranty or warranty of the
Corporation at common law or under any statute.
3.15 REMOVAL OF DIRECTORS
Unless otherwise restricted by statute, by the Certificate of Incorporation or
by these Bylaws, any Director or the entire Board of Directors may be removed,
with or without cause, by the holders of a majority of the shares then entitled
to vote at an election of Directors.
No reduction of the authorized number of Directors shall have the effect of
removing any Director prior to the expiration of such Director's term of office.
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS
The Board of Directors may, by resolution passed by a majority of the whole
Board, designate one or more Committees, with 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 he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. Any such Committee, to the extent provided in the resolution of the
Board of Directors or in the Bylaws of the Corporation, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers that may require it; but no
such Committee shall have the power or authority to (i) amend the Certificate of
Incorporation (except that a Committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the Board of Directors as provided in Section 151(a) of the Delaware General
Corporation Law, fix any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
Corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other class
or classes of stock of the Corporation), (ii) adopt an agreement of merger or
consolidation under Sections 251 or 252 of the Delaware General Corporation Law,
(iii) recommend to the Stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, (iv) recommend to
the Stockholders a dissolution of the Corporation or a revocation of a
dissolution, or (v) amend the Bylaws of the Corporation; and, unless the Board
resolution establishing the Committee, the Bylaws or the Certificate of
Incorporation expressly so provide, no such Committee shall have the power or
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authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger pursuant to Section 253 of the Delaware
General Corporation Law.
4.2 COMMITTEE MINUTES
Each Committee shall keep regular minutes of its meetings and report the same to
the Board of Directors 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 Article III of these Bylaws, Section 3.5
(place of meetings and meetings by telephone), Section 3.7 (regular meetings),
Section 3.8 (special meetings and notice), Section 3.9 (quorum), Section 3.10
(waiver of notice), Section 3.11 (adjournment and notice of adjournment), and
Section 3.12 (action without a meeting), with such changes in the context of
those Bylaws as are necessary to substitute the Committee and its members for
the Board of Directors and its members; provided, however, that the time of
regular meetings of Committees may also be called by resolution of the Board of
Directors and that 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 of Directors may adopt rules for the government of any
Committee not inconsistent with the provisions of these Bylaws.
ARTICLE V
OFFICERS
5.1 OFFICERS
The Officers of the Corporation shall be a President and a Secretary. The
Corporation may also have, at the discretion of the Board of Directors, a
Chairman of the Board, one or more Vice Presidents, one or more assistant Vice
Presidents, assistant secretaries, a Treasurer, assistant Treasurers, and any
such other Officers as may be appointed in accordance with the provisions of
Section 5.3 of these Bylaws. Any number of offices may be held by the same
person.
5.2 ELECTION OF OFFICERS
The Officers of the Corporation, except such Officers as may be appointed in
accordance with the provisions of Sections 5.3 or 5.5 of these Bylaws, shall be
chosen by the Board of Directors, subject to the rights, if any, of an Officer
under any contract of employment.
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5.3 SUBORDINATE OFFICERS
The Board of Directors may appoint, or empower the President to appoint, such
other Officers and agents as the business of the Corporation may require, each
of whom shall hold office for such period, have such authority, and perform such
duties as are provided in these Bylaws or as the Board of Directors may from
time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS
Subject to the rights, if any, of an Officer under any contract of employment,
any Officer may be removed, either with or without cause, by an affirmative vote
of the majority of the Board of Directors at any regular or special meeting of
the Board or, except in the case of an Officer chosen by the Board of Directors,
by any Officer upon whom such power of removal may be conferred by the Board of
Directors.
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; and, unless otherwise specified in
that notice, 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 of Directors.
5.6 CHAIRMAN OF THE BOARD
The Chairman of the Board, if such an Officer be elected, shall, if present,
preside at meetings of the Board of Directors and exercise and perform such
other powers and duties as may from time to time be assigned to him by the Board
of Directors or as may be prescribed by these Bylaws. If there is no President,
then the Chairman of the Board shall also be the chief executive Officer of the
Corporation and shall have the powers and duties prescribed in Section 5.7 of
these Bylaws.
5.7 PRESIDENT
Subject to such supervisory powers, if any, as may be given by the Board of
Directors to the Chairman of the Board, if there be such an Officer, the
President shall be the chief executive Officer of the Corporation and shall,
subject to the control of the Board of Directors, have general supervision,
direction, and control of the business and the Officers of the Corporation. He
shall preside at all meetings of the Stockholders and, in the absence or
nonexistence of a Chairman of the Board, at all meetings of the Board of
Directors. He shall have the general
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powers and duties of management usually
vested in the office of President of a Corporation and shall have such other
powers and duties as may be prescribed by the Board of Directors or these
Bylaws.
5.8 VICE PRESIDENT
In the absence or disability of the President, the Vice Presidents, if any, in
order of their rank as fixed by the Board of Directors or, if not ranked, a Vice
President designated by the Board of Directors, shall perform all the duties of
the President and when so acting shall have all the powers of, and be subject to
all the restrictions upon, the 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 of Directors, these Bylaws, the
President or the Chairman of the Board.
5.9 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 of Directors may direct, a
book of minutes of all meetings and actions of Directors, Committees of
Directors, and Stockholders. The minutes shall show the time and place of each
meeting, whether regular or special (and, if special, how authorized and the
notice given), the names of those present at Directors' meetings or Committee
meetings, the number of shares present or represented at Stockholders' meetings,
and 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 of Directors, a share
register, or a duplicate share register, showing the names of all Stockholders
and their addresses, the number and classes of shares held by each, the number
and date of certificates evidencing such shares, and 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
Stockholders and of the Board of Directors required to be given by law or by
these Bylaws. He 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 of Directors or by these Bylaws.
5.10 TREASURER
The Treasurer, if any, 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.
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The Treasurer, if any, shall deposit all money and other valuables in the name
and to the credit of the Corporation with such depositaries as may be designated
by the Board of Directors. He shall disburse the funds of the Corporation as may
be ordered by the Board of Directors, shall render to the President and
Directors, whenever they request it, an account of all of his transactions as
Treasurer and of the financial condition of the Corporation, and shall have such
other powers and perform such other duties as may be prescribed by the Board of
Directors or these Bylaws.
5.11 ASSISTANT SECRETARY
The assistant Secretary, or, if there is more than one, the assistant
secretaries in the order determined by the Stockholders or Board of Directors
(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 his or her 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 the Board of
Directors or the Stockholders may from time to time prescribe.
5.12 ASSISTANT TREASURER
The assistant Treasurer, or, if there is more than one, the assistant
Treasurers, in the order determined by the Stockholders or Board of Directors
(or if there be no such determination, then in the order of their election),
shall, in the absence of the Treasurer or in the event of his or her inability
or refusal to act, perform the duties and exercise the powers of the Treasurer
and shall perform such other duties and have such other powers as the Board of
Directors or the Stockholders may from time to time prescribe.
5.13 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 of Directors or the Stockholders.
ARTICLE VI
INDEMNITY
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation shall, to the maximum extent and in the manner permitted by the
Delaware General Corporation Law, indemnify each of its Directors and Officers
against expenses (including attorneys' fees), judgments, fines, settlements, and
other amounts actually and reasonably incurred in connection with any
proceeding, arising by reason of the fact that such person is or was an agent of
the Corporation. For purposes of this Section 6.1, a "Director" or
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"Officer" of the Corporation includes any person (i) who is or was a Director or
Officer of the Corporation, (ii) who is or was serving at the request of the
Corporation as a Director or Officer of another Corporation, partnership, joint
venture, trust or other enterprise, or (iii) who was a Director or Officer of a
Corporation which was a predecessor Corporation of the Corporation or of another
enterprise at the request of such predecessor Corporation.
6.2 INDEMNIFICATION OF OTHERS
The Corporation shall have the power, to the extent and in the manner permitted
by the Delaware General Corporation Law, to indemnify each of its employees and
agents (other than Directors and Officers) against expenses (including
attorneys' fees), judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with any proceeding, arising by reason of the
fact that such person is or was an agent of the Corporation. For purposes of
this Section 6.2, an "employee" or "agent" of the Corporation (other than a
Director or Officer) includes any person (i) who is or was an employee or agent
of the Corporation, (ii) who is or was serving at the request of the Corporation
as an employee or agent of another Corporation, partnership, joint venture,
trust or other enterprise, or (iii) who was an employee or agent of a
Corporation which was a predecessor Corporation of the Corporation or of another
enterprise at the request of such predecessor Corporation.
6.3 INSURANCE
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 serving at the request of the Corporation as a Director, Officer, employee
or agent of another Corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of the Delaware General Corporation Law.
ARTICLE VII
RECORDS AND REPORTS
7.1 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 of Directors, keep a record of its
Stockholders listing their names and addresses and the number and class of
shares held by each Stockholder, a copy of these Bylaws as amended to date,
accounting books, and other records.
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Any Stockholder 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 Stockholders, 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 Stockholder. 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 Stockholder. The demand under oath shall be directed to the
Corporation at its registered office in Delaware or at its principal place of
business.
The Officer who has charge of the stock ledger of a Corporation shall prepare
and make, at least ten (10) days before every meeting of Stockholders, a
complete list of the Stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each Stockholder and the number
of shares registered in the name of each Stockholder. Such list shall be open to
the examination of any Stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any Stockholder who is present.
7.2 INSPECTION BY DIRECTORS
Any Director shall have the right to examine the Corporation's stock ledger, a
list of its Stockholders, and its other books and records for a purpose
reasonably related to his position as a Director. The Court of Chancery is
hereby vested with the exclusive jurisdiction to determine whether a Director is
entitled to the inspection sought. The Court may summarily order the Corporation
to permit the Director to inspect any and all books and records, the stock
ledger, and the stock list and to make copies or extracts therefrom. The Court
may, in its discretion, prescribe any limitations or conditions with reference
to the inspection, or award such other and further relief as the Court may deem
just and proper.
7.3 ANNUAL STATEMENT TO STOCKHOLDERS
The Board of Directors shall present at each annual meeting, and at any special
meeting of the Stockholders when called for by vote of the Stockholders, a full
and clear statement of the business and condition of the Corporation.
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The Chairman of the Board, the President, any Vice President, the Treasurer, the
Secretary or assistant Secretary of this Corporation, or any other person
authorized by the Board of Directors or the President or a Vice President, is
authorized to vote, represent, and exercise on behalf of
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this Corporation all rights incident to any and all shares of any other
Corporation or Corporations 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.
ARTICLE VIII
GENERAL MATTERS
8.1 CHECKS
From time to time, the Board of Directors 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.
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS
The Board of Directors, except as otherwise provided in these Bylaws, 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.
Unless so authorized or ratified by the Board of Directors or within the agency
power of an Officer, no Officer, agent or employee shall have any power or
authority to bind the Corporation by any contract or engagement or to pledge its
credit or to render it liable for any purpose or for any amount.
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES
The shares of a Corporation shall be represented by certificates, provided that
the Board of Directors of the Corporation 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 of
Directors, 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 of Directors, or the 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 were such Officer, transfer agent or
registrar at the date of issue.
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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, 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.
8.4 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, the designations, the
preferences, and the 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 202 of the Delaware General Corporation
Law, 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 Stockholder who so requests the powers, the designations, the
preferences, and the 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.
8.5 LOST CERTIFICATES
Except as provided in this Section 8.5, 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 his legal representative, to give the Corporation a
bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate or uncertificated shares.
8.6 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions, rules of
construction, and definitions in the Delaware General Corporation Law 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.
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8.7 DIVIDENDS
The Directors of the Corporation, subject to any restrictions contained in the
Certificate of Incorporation, may declare and pay dividends upon the shares of
its capital stock pursuant to the Delaware General Corporation Law. Dividends
may be paid in cash, in property, or in shares of the Corporation's capital
stock.
The Directors of the Corporation 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. Such purposes shall include but not be limited
to equalizing dividends, repairing or maintaining any property of the
Corporation, and meeting contingencies.
8.8 FISCAL YEAR
The fiscal year of the Corporation shall be fixed by resolution of the Board of
Directors and may be changed by the Board of Directors.
8.9 SEAL
This Corporation may have a corporate seal, which may be adopted or altered at
the pleasure of the Board of Directors, and may use the same by causing it or a
facsimile thereof, to be impressed or affixed or in any other manner reproduced.
8.10 TRANSFER OF STOCK
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.
8.11 STOCK TRANSFER AGREEMENTS
The Corporation shall have power to enter into and perform any agreement with
any number of Stockholders of any one or more classes of stock of the
Corporation to restrict the transfer of shares of stock of the Corporation of
any one or more classes owned by such Stockholders in any manner not prohibited
by the Delaware General Corporation Law.
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8.12 REGISTERED STOCKHOLDERS
The Corporation 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, shall be entitled to hold liable for calls and assessments the
person registered on its books as the owner of shares, and 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 Delaware.
ARTICLE IX
AMENDMENTS
The original or other Bylaws of the Corporation may be adopted, amended or
repealed by the Stockholders entitled to vote; provided, however, that the
Corporation may, in its Certificate of Incorporation, confer the power to adopt,
amend or repeal Bylaws upon the Directors. The fact that such power has been so
conferred upon the Directors shall not divest the Stockholders of the power, nor
limit their power to adopt, amend or repeal Bylaws.
ARTICLE X
DISSOLUTION
If it should be deemed advisable in the judgment of the Board of Directors of
the Corporation that the Corporation should be dissolved, the Board, after the
adoption of a resolution to that effect by a majority of the whole Board at any
meeting called for that purpose, shall cause notice to be mailed to each
Stockholder entitled to vote thereon of the adoption of the resolution and of a
meeting of Stockholders to take action upon the resolution.
At the meeting a vote shall be taken for and against the proposed dissolution.
If a majority of the outstanding stock of the Corporation entitled to vote
thereon votes for the proposed dissolution, then a certificate stating that the
dissolution has been authorized in accordance with the provisions of Section 275
of the Delaware General Corporation Law and setting forth the names and
residences of the Directors and Officers shall be executed, acknowledged, and
filed and shall become effective in accordance with Section 103 of the Delaware
General Corporation Law. Upon such certificate's becoming effective in
accordance with Section 103 of the Delaware General Corporation Law, the
Corporation shall be dissolved.
Whenever all the Stockholders entitled to vote on a dissolution consent in
writing, either in person or by duly authorized attorney, to a dissolution, no
meeting of Directors or Stockholders shall be necessary. The consent shall be
filed and shall become effective in accordance with Section 103 of the Delaware
General Corporation Law. Upon such consent's becoming effective in accordance
with Section 103 of the Delaware General Corporation Law, the Corporation shall
be dissolved. If the consent is signed by an attorney, then the original power
of attorney or a photocopy thereof shall be attached to and filed with the
consent. The consent filed with the Secretary of State shall have attached to it
the affidavit of the Secretary or some other Officer of the Corporation stating
that the consent has been signed by or on behalf of all the Stockholders
entitled to vote on a dissolution; in addition, there shall be attached to the
consent a certification by the Secretary or some other Officer of
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the Corporation setting forth the names and residences of the Directors and
Officers of the Corporation.
ARTICLE XI
CUSTODIAN
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES
The Court of Chancery, upon application of any Stockholder, may appoint one or
more persons to be custodians and, if the Corporation is insolvent, to be
receivers, of and for the Corporation when:
(i) at any meeting held for the election of Directors the
Stockholders are so divided that they have failed to elect
successors to Directors whose terms have expired or would have
expired upon qualification of their successors; or
(ii) the business of the Corporation is suffering or is threatened
with irreparable injury because the Directors are so divided
respecting the management of the affairs of the Corporation
that the required vote for action by the Board of Directors
cannot be obtained and the Stockholders are unable to
terminate this division; or
(iii) the Corporation has abandoned its business and has failed
within a reasonable time to take steps to dissolve, liquidate
or distribute its assets.
11.2 DUTIES OF CUSTODIAN
The custodian shall have all the powers and title of a receiver appointed under
Section 291 of the Delaware General Corporation Law, but the authority of the
custodian shall be to continue the business of the Corporation and not to
liquidate its affairs and distribute its assets, except when the Court of
Chancery otherwise orders and except in cases arising under Sections 226(a)(3)
or 352(a)(2) of the Delaware General Corporation Law.
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On April 5, 2001, Section 3.2 of the Bylaws of E-Trend Networks, Inc., a
Delaware corporation, was amended to state as follows:
3.2 NUMBER OF DIRECTORS
The Board of Directors shall consist of at least three (3) directors, and
thereafter shall consist of such number as may be fixed from time to time by
resoltion of the Board or the stockholders.