Exhibit 3.1
AMENDED AND RESTATED BY-LAWS
OF
CNS, INC.
DATED JANUARY 23, 2002
CONTENTS OF AMENDED AND RESTATED BY-LAWS
OF
CNS, INC.
ARTICLE 1 - OFFICES............................................................1
1.1) Registered Offices...........................................1
1.2) Offices......................................................1
ARTICLE 2 - CORPORATE SEAL.....................................................1
ARTICLE 3 - SHAREHOLDERS.......................................................1
3.1) Regular Meeting..............................................1
3.2) Special Meetings.............................................2
3.3) Quorum.......................................................2
3.4) Voting.......................................................2
3.5) Notice of Meeting............................................3
3.6) Proxies......................................................3
3.7) Closing Transfer Books.......................................3
3.8) Record Date..................................................3
3.9) Presiding Officer............................................3
3.10) Conduct of Meetings of Shareholders..........................4
3.11) Order of Business............................................4
3.12) Inspectors of Election.......................................5
3.13) Informal Action by Shareholders..............................5
ARTICLE 4 - DIRECTORS..........................................................5
4.1) General Powers...............................................5
4.2) Number.......................................................5
4.3) Qualifications and Term of Office............................5
4.4) Quorum.......................................................5
4.5) Regular Meetings.............................................6
4.6) Telephonic Meetings..........................................6
4.7) Special Meetings.............................................6
4.8) Compensation.................................................6
4.9) Salaries.....................................................6
4.10) Committees...................................................6
4.11) Committee of Disinterested Persons...........................7
4.12) Vacancies....................................................7
4.13) Order of Business............................................7
4.14) Written Consent or Opposition in Advance of Meeting..........7
4.15) Informal Action by Directors.................................8
4.16) Nominations for Election of Directors........................8
ARTICLE 5 - OFFICERS...........................................................8
5.1) Number.......................................................8
5.2) Election, Term of Office and Qualifications..................8
5.3) Chairman of the Board........................................9
5.4) President and Chief Executive Officer........................9
5.5) Chief Operating Officer......................................9
5.6) Vice President...............................................9
5.7) Secretary....................................................9
5.8) Treasurer and Chief Financial Officer........................9
5.9) Assistant Officers..........................................10
5.10) Officers Shall Not Lend Corporate Credit....................10
ARTICLE 6 - INDEMNIFICATION...................................................10
ARTICLE 7 - SHARES AND THEIR TRANSFER.........................................10
7.1) Certificates of Stock.......................................10
7.2) Facsimile Signature.........................................10
7.3) Issuance of Shares..........................................11
7.4) Transfer of Shares..........................................11
7.5) Lost Certificates...........................................11
7.6) Treasury Stock..............................................11
7.7) Indebtedness of Shareholders................................11
7.8) Transfer Agent and Registrar................................11
ARTICLE 8 - BOOKS AND RECORDS.................................................11
8.1) Share Register; Dates of Issuance...........................11
8.2) Other Documents Required....................................12
8.3) Financial Records...........................................12
8.4) Right to Inspect............................................12
8.5) Cost of Copies..............................................12
8.6) Computerized Records........................................13
8.7) Financial Statements........................................13
ARTICLE 9 - DISTRIBUTIONS.....................................................13
9.1) Distributions...............................................13
9.2) Record Date.................................................13
9.3) Restrictions................................................14
ARTICLE 10 - FINANCIAL AND PROPERTY MANAGEMENT................................14
10.1) Fiscal Year.................................................14
10.2) Audit of Books and Accounts.................................14
10.3) Contracts...................................................14
10.4) Checks......................................................14
10.5) Deposits....................................................14
10.6) Voting Securities Held by Corporation.......................14
ARTICLE 11 - WAIVER OF NOTICE.................................................15
ARTICLE 12 - AMENDMENTS.......................................................15
AMENDED AND RESTATED BY-LAWS
OF
CNS, INC.
ARTICLE 1
OFFICES
1.1) Registered Offices - The address of the registered office of the
corporation shall be established and maintained at the office of the Corporation
Trust Center, 1209 Orange Street, in the City of Wilmington, County of New
Castle, State of Delaware and the Corporation Trust Company shall be the
registered agent of the corporation. The Board of Directors shall have authority
to change the registered office of the corporation from time to time, and any
such change shall be registered by the secretary with the Secretary of State of
Delaware.
1.2) Offices - The corporation may have such other offices, including
its principal business office, either within or without the State of Delaware,
as the Board of Directors may designate or as the business of the corporation
may require from time to time.
ARTICLE 2
CORPORATE SEAL
The corporate seal shall have thereon the name of the corporation, and
the words "Corporate Seal" and when so directed by the Board of Directors a
duplicate of the seal may be kept and used by the secretary or treasurer or by
an assistant secretary or assistant treasurer.
ARTICLE 3
SHAREHOLDERS
3.1) Regular Meeting - The regular meeting of the shareholders of the
corporation shall be an annual meeting held at the principal business office of
the corporation, or at such place as is designated by the Board of Directors or
by written consent of all the shareholders entitled to vote thereat, at which
time the shareholders, voting as provided in the Articles of Incorporation,
shall elect a Board of Directors for the ensuing year, and shall transact such
other business as shall properly come before them. In the event the regular
meeting is not held for a period of thirteen (13) months or more, a shareholder
or director may apply to the Court of Chancery to summarily order a meeting to
be held. To be properly brought before the annual meeting, business must be of a
nature that is appropriate for consideration at an annual meeting and must be
(i) specified in the notice of meeting (or any supplement thereto) given by or
at the direction of the Board of Directors, (ii) otherwise properly brought
before the meeting by a shareholder. In addition to any other applicable
requirements, for business to be properly brought before the annual meeting by a
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shareholder, the shareholder must have given timely notice thereof in writing to
the Secretary of the corporation. To be timely, each such notice must be given,
either by personal delivery or by United States mail, postage prepaid, to the
Secretary of the corporation, not less than 45 days nor more than 60 days prior
to the date the proxy materials for the previous year's annual meeting were
mailed to shareholders of the corporation. Each such notice to the Secretary
shall set forth as to each matter the shareholder proposes to bring before the
annual meeting (w) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (x) the name and address of record of the shareholders proposing
such business, (y) the class or series (if any) and the number of shares of the
corporation which are owned by the shareholder, and (z) any material interest of
the shareholder in such business. Notwithstanding anything in these By-laws to
the contrary, no business shall be transacted at the annual meeting except in
accordance with the procedures set forth in this Article; provided, however,
that nothing in this Article shall be deemed to preclude discussion by any
shareholder of any business properly brought before the annual meeting, in
accordance with these By-Laws.
3.2) Special Meetings - Special meetings of the shareholders shall be
called by the Secretary at any time upon request of the President, a
Vice-President acting in the capacity of the President, the Treasurer or two (2)
or more members of the Board of Directors, or upon a written request of
shareholders holding ten percent (10%) or more of the capital stock entitled to
vote. Notice shall be given in accordance with the provisions of Article 3.5
hereof.
3.3) Quorum - The holders of fifty (50%) percent of the outstanding
shares entitled to vote, represented either in person or by proxy, shall
constitute a quorum for the transaction of business. The shareholders present at
a duly called or held meeting, at which a quorum of the shareholders is present,
may continue to transact business until adjournment notwithstanding the
withdrawal of enough shareholders to leave less than a quorum. In case a quorum
is not present at any meeting, those present shall have the power to adjourn the
meeting from time to time, without notice or other announcement at the meeting,
until the requisite number of voting shares shall be represented. Any business
may be transacted at such reconvened meeting which might have been transacted at
the meeting which was adjourned.
3.4) Voting - At each meeting of the shareholders, every shareholder
having the right to vote shall be entitled to vote in person or by proxy duly
appointed by an instrument in writing subscribed by such shareholder. Each
shareholder shall have one (1) vote for each share having voting power standing
in his name on the books of the corporation. Shares owned by two (2) or more
shareholders may be voted by any one of them unless the corporation receives
written notice from any one of them denying the authority of that person to vote
those shares. A holder of voting shares may vote any portion of the shares in
any way the shareholder chooses. If a shareholder votes without designating the
proportion or number of shares voted in a particular way, the shareholder is
deemed to have voted all the shares in that way. Upon the demand of any
shareholder, the vote for director, or the vote upon any question before the
meeting shall be by ballot. All elections shall be had and all questions decided
by a majority vote of the number of shares entitled to vote and represented at
any meeting at which there is a quorum, except in such cases as shall otherwise
be required or permitted by statute, the Certificate of Incorporation, these
By-Laws or by agreement approved by a majority vote of the number of shares
entitled to vote.
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3.5) Notice of Meeting - There shall be mailed to each shareholder
shown by the books of the corporation to be a holder of record of voting shares,
at his address as shown by the books of the corporation, a notice setting out
the time and place of the regular meeting or any special meeting, which notice
shall be mailed at least ten (10) days and not more than sixty (60) days prior
thereto. Every notice of any special meeting shall state the purpose or purposes
of the proposed meeting, and the business transacted at all special meetings
shall be confined to purposes stated in the call. A shareholder may waive notice
of a meeting of shareholders. A waiver of notice by a shareholder entitled to
notice is effective whether given before, at, or after the meeting, or whether
given in writing, orally, or by attendance. Attendance by a shareholder at a
meeting is a waiver of notice of that meeting, except where the shareholder
objects at the beginning of the meeting to the transaction of business because
the meeting is not lawfully called or convened, or objects before a vote on an
item of business because the item may not lawfully be considered at that meeting
and does not participate in the consideration of the item at that meeting.
3.6) Proxies - At all meetings of shareholders, a shareholder may vote
by proxy executed in writing by the shareholder or by his duly authorized
attorney-in-fact. Such proxies shall be filed with the Secretary of the
corporation before or at the time of the meeting. No proxy shall be valid after
eleven (11) months from the date of its execution, unless otherwise provided in
the proxy. No appointment of a proxy is irrevocable unless the appointment is
coupled with an interest in the shares of the corporation.
3.7) Closing Transfer Books - The Board of Directors may close the
stock transfer books for a period of time not exceeding sixty (60) days
preceding the date of any meeting of shareholders, payment of dividend,
allotment of rights, change, conversion or exchange of capital stock or the date
of obtaining consent of shareholders for any purpose.
3.8) Record Date - In lieu of closing the stock record books the Board
of Directors may fix in advance a date, not exceeding sixty (60) days preceding
the date of any of the aforesaid events, as a record date for the determination
of shareholders entitled to notice of and to vote at any such meeting and any
adjournment thereof, or to receive any such dividend or allotment or rights, or
to exercise the rights in respect to any change, conversion or exchange of
capital stock or to give such consent, and in such case only such shareholders
on the record date so fixed shall be entitled to notice of and to vote at such
meeting and any adjournment thereof, or to receive such dividend or allotment of
rights, or to exercise such rights, or to give such consent, as the case may be,
notwithstanding any transfer of any stock on the books of the corporation after
any such record date so fixed. If the stock transfer books are not closed and no
record date is fixed for such determination of the shareholders of record, the
date on which notice of the meeting is mailed, or the date of adoption of a
resolution of the Board of Directors declaring a dividend, allotment of rights,
change, conversion or exchange of capital stock or to give such consent, as the
case may be, shall be the record date for such determination of shareholders. A
determination of shareholders entitled to vote shall apply to any adjournment of
such meeting except when the date of determination or the closing of the stock
transfer book exceeds sixty (60) days preceding such adjourned meeting, in which
event a new meeting must be called.
3.9) Presiding Officer - The appropriate officers of the corporation
shall preside over all meetings of the shareholders; provided, however, that in
the absence of an appropriate corporate
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officer at any meeting of the shareholders, the meeting shall choose any person
present to act as presiding officer of the meeting.
3.10) Conduct of Meetings of Shareholders - Subject to the following,
meetings of shareholders generally shall follow accepted rules of parliamentary
procedure:
1. The chairman of the meeting shall have absolute authority over
matters of procedure and there shall be no appeal from the
ruling of the chairman. If the chairman, in his absolute
discretion, deems it advisable to dispense with the rules of
parliamentary procedure as to any one meeting of shareholders
or part thereof the chairman shall so state and shall clearly
state the rules under which the meeting or appropriate part
thereof shall be conducted.
2. If disorder should arise which prevents continuation of the
legitimate business of the meeting, the chairman may quit the
chair and announce the adjournment of the meeting; and upon
his so doing, the meeting is immediately adjourned.
3. The chairman may ask or require that anyone not a bona fide
shareholder or proxy leave the meeting.
4. A resolution or motion shall be considered for vote only if
proposed by a shareholder or duly authorized proxy, and
seconded by an individual who is a shareholder or a duly
authorized proxy, other than the individual who proposed the
resolution or motion; provided, however, that the chairman
shall have the discretion to rule out of order any resolution
or motion which seeks shareholder vote on (i) a proposal that
has failed to comply with the requirements of Article 3.1, or
(ii) any nomination(s) for the election of directors that
fails to comply with Article 4.16.
3.11) Order of Business - The suggested order of business at the
regular meeting of shareholders, and so far as possible at all other meetings of
the shareholders, shall be:
1. Calling of roll.
2. Proof of due notice of meeting, or unanimous waiver.
3. Reading and disposal of any unapproved minutes.
4. Annual reports of all officers and committees.
5. Election of directors.
6. Unfinished business.
7. New business properly presented.
8. Adjournment.
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3.12) Inspectors of Election - The Board of Directors in advance of any
meeting of shareholders may appoint inspectors to act at such meeting or any
adjournment thereof. If inspectors of election are not so appointed, the officer
or person acting as chairman of any such meeting may, and on the request of any
shareholder or his proxy, shall make such appointment. In case any person
appointed as inspector shall fail to appear or act, the vacancy may be filled by
appointment made by the Board of Directors in advance of the meeting, or at the
meeting by the officer or person acting as chairman. The inspectors of election
shall determine the number of shares outstanding, the voting power of each, the
shares represented at the meeting, the existence of a quorum, the authenticity,
validity and effect of proxies, receive votes, ballots, assents or consents,
hear and determine all challenges and questions in any way arising and announce
the result, and do such acts as may be proper to conduct the election or vote
with fairness to all shareholders.
No inspector whether appointed by the Board of Directors or by the
officer or person acting as chairman need be a shareholder.
3.13) Informal Action by Shareholders - Any action required to be taken
at a meeting of the shareholders, or any other action which may be taken at a
meeting of the shareholders, may be taken without a meeting and notice thereof
if a consent 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. The written
action is effective when it has been signed by all of those shareholders, unless
a different effective time is provided in the written action.
ARTICLE 4
DIRECTORS
4.1) General Powers - The property, affairs, and business of the
corporation shall be managed by the Board of Directors.
4.2) Number - The Board of Directors shall consist of such number of
directors, not less than five (5) nor more than ten (10), the exact number to be
fixed from time to time solely by resolution of the Board of Directors, acting
by not less than a majority of the directors then in office.
4.3) Qualifications and Term of Office - Directors need not be
shareholders or residents of the State of Delaware. Directors shall be elected
by the shareholders at the regular meeting for a term of one (1) year or until
their successors are elected and qualified. Each of the directors of the
corporation shall hold office until the regular meeting next following or
closely coinciding with the expiration of his term of office and until his
successor shall have been elected and shall qualify or until he shall resign, or
shall have been removed as provided by statute.
4.4) Quorum - A majority of the whole Board of Directors shall
constitute a quorum for the transaction of business; provided, however, that if
any vacancies exist by reason of death, resignation or otherwise, a majority of
the remaining directors shall constitute a quorum for the conduct of business.
If less than a quorum is present at any meeting, a majority of the directors
present may adjourn the meeting from time to time without further notice. If a
quorum is present when a duly called or held meeting is convened, the directors
present may continue to transact
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business until adjournment, even though the withdrawal of a number of directors
originally present leaves less than a majority.
4.5) Regular Meetings - As soon as practical after each regular meeting
of shareholders, the Board of Directors shall meet for the purposes of
organization, choosing the officers of the corporation and for the transaction
of other business at the place where the shareholders' meeting is held or at the
place where regular meetings of the Board of Directors are held. No notice of
such meeting need be given. Such first meeting may be held at any other time and
place which shall be specified in a notice given as hereinafter provided for
special meetings or in a consent and waiver of notice signed by all the
directors.
4.6) Telephonic Meetings - Any member or members of the Board of
Directors, or any committee designated by such Board, may participate in a
meeting of the Board of Directors or such 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 participation in a meeting
pursuant to this paragraph shall constitute presence in person at such meeting.
4.7) Special Meetings - Special meetings of the Board of Directors may
be held at such time and place as may from time to time be designated in the
notice or waiver of notice of the meeting. Special meetings of the Board of
Directors may be called by the president, or by any director. Unless notice
shall be waived by all directors entitled to notice, notice of the special
meeting shall be given by the secretary, who shall give at least twenty-four
(24) hours notice thereof to each director by mail, telegraph, telephone, or in
person; provided, however, that meetings may be held without waiver of notice
from or giving notice to any director while he is in the Armed Forces of the
United States. Each director, by his attendance and his participation in the
action taken at any directors' meeting, shall be deemed to have waived notice of
such meeting.
4.8) Compensation - Directors and any members of any committee of the
corporation contemplated by these By-Laws or otherwise provided for by
resolution of the Board of Directors, shall receive such compensation therefore
as may be determined from time to time by resolution of the Board of Directors.
Nothing herein contained shall be construed to preclude any director from
serving the corporation in any other capacity and receiving proper compensation
therefor.
4.9) Salaries - Salaries and other compensation of all officers and
employees of the corporation shall be fixed by the Board of Directors. Nothing
herein contained shall be construed to preclude any officer from serving the
corporation as a director, consultant or in any other capacity and receiving
proper compensation therefor. In the event that any authority, such as the
Internal Revenue Service, determines, and such determination is ultimately
accepted, that any compensation paid to a director, officer or employee of the
corporation is excessive and disallows the corporate deduction therefor, the
recipient of the amounts so determined to be excessive shall repay the
corporation said amount.
4.10) Committees - A resolution approved by the affirmative vote of a
majority of the Board of Directors may establish committees having the authority
of the Board in the management of the business of the corporation to the extent
provided in the resolution. Committees are subject at all times to the direction
and control of the Board of Directors except as provided in Article 4.11. A
committee shall consist of one or more natural persons, who are directors,
appointed by
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affirmative vote of a majority of the directors present. A majority of the
members of the committee present at a meeting is a quorum for the transaction of
business unless a larger or smaller proportion is provided in a resolution
approved by the affirmative vote of a majority of the directors present.
4.11) Committee of Disinterested Persons - The Board of Directors may
establish a committee composed of two or more disinterested directors or other
disinterested persons to determine whether it is in the best interests of the
corporation to pursue a particular legal right or remedy of the corporation and
whether to cause the dismissal or discontinuance of a particular proceeding that
seeks to assert a right or remedy on behalf of the corporation. A director or
other person is "disinterested" if he is not an owner of more than one percent
of the outstanding shares of, or a present or former officer, employee or agent
of the corporation or of a related corporation and has not been made or
threatened to be made a party to the proceeding in question. The committee, once
established, is not subject to the direction or control of, or termination by,
the Board of Directors. A vacancy on the committee may be filled by a majority
vote of the remaining members. The good faith determinations of the committee
are binding upon the corporation and its directors, officers and shareholders.
The committee terminates when it issues a written report of its determinations.
4.12) Vacancies - Any vacancy in the Board of Directors shall be filled
by an affirmative vote of a majority of the remaining directors of the Board,
though less than a quorum, and each person so elected shall be a director until
his successor is elected by the shareholders, who may make such election at
their next annual meeting or any meeting duly called for that purpose.
4.13) Order of Business - The meetings shall be conducted in accordance
with Roberts Rules of Order, Revised, and the suggested order of business at any
meeting of the directors shall be:
1. Roll call.
2. Proof of due notice of meeting, or unanimous consent, or
unanimous presence and declaration by president.
3. Reading and disposal of any unapproved minutes.
4. Reports of officers and committees.
5. Election of officers.
6. Unfinished business.
7. New business.
8. Adjournment.
4.14) Written Consent or Opposition in Advance of Meeting - Any member
of the Board of Directors or a committee thereof, may give advance written
consent or opposition to a proposal or resolution stating an action to be taken
by the Board or committee. Such consent or opposition shall be a vote in favor
of or against the proposal or resolution if the proposal or resolution acted
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upon at the meeting is substantially the same or has substantially the same
effect as the proposal or resolution to which the member of the Board or
committee has consented or objected.
4.15) Informal Action by Directors - Any action required or permitted
to be taken at a meeting of the directors may be taken without a meeting and
notice thereof if a consent in writing, setting forth the action so taken, shall
be signed by all of the directors entitled to vote with respect to the subject
matter set forth.
4.16) Nominations for Election of Directors - Subject to the rights of
holders of any class or series of stock having a preference over the common
shares as to dividends or upon liquidation, nominations for the election of
directors may be made by the Board of Directors or a committee appointed by the
Board of Directors or by any shareholder entitled to vote generally in the
election of directors. However, any shareholder entitled to vote generally in
the election of directors may nominate one or more persons for election as
directors at a meeting only if written notice of such shareholder's intent to
make such nomination or nominations has been given, either by personal delivery
or by United States mail, postage prepaid, to the Secretary of the corporation
not less than 45 days nor more than 60 days prior to the date the proxy
materials for the previous year's annual meeting were mailed to shareholders of
the corporation. Each such notice to the Secretary shall set forth: (i) the name
and address of record of the shareholder who intends to make the nomination;
(ii) a representation that the shareholder is a holder of record of shares of
the Corporation entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to nominate the person or persons specified in the
notice; (iii) the name, age, business and residence addresses, and principal
occupation or employment of each nominee; (iv) a description of all arrangements
or understandings between the shareholder and each nominee and any other person
or persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the shareholder; (v) such other information
regarding each nominee proposed by such shareholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission; and (vi) the consent of each nominee to
serve as a director of the corporation if so elected. The corporation may
require any proposed nominee to furnish such other information as may reasonably
be required by the corporation to determine the eligibility of such proposed
nominee to serve as a director of the corporation. The chairman or presiding
officer of the meeting may, if the facts warrant, determine that a nomination
was not made in accordance with the foregoing procedure, and if the chair or
presiding officer should so determine, he or she shall so declare to the meeting
and the defective nomination shall be disregarded.
ARTICLE 5
OFFICERS
5.1) Number - The officers of the corporation shall include a president
or chief executive officer, a treasurer or chief financial officer and a
secretary and may include such other officers as may from time to time be chosen
by the Board of Directors. Any two offices except those of president and
vice-president may be held by one person.
5.2) Election, Term of Office and Qualifications - At any regular
meeting of the Board of Directors, the Board shall elect from their number a
president or chief executive officer and shall, from within or without their
number, elect a treasurer or chief financial officer and a secretary, and
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may, in addition, from within or without their number, elect one or more
vice-presidents and such other officers and assistant officers as may be deemed
advisable. Such officers shall hold office until the next regular meeting or
until their successors are elected and qualified; provided, however, that any
officer may be removed with or without cause by the affirmative vote of a
majority of the whole Board of Directors.
5.3) Chairman of the Board - The chairman of the board of directors
shall preside at all meetings of shareholders and directors, and he shall have
such other powers and perform such other duties as the Board of Directors may
from time to time prescribe.
5.4) President and Chief Executive Officer - The president shall have
general and active management of the business under the supervision and
direction of the Board of Directors, and he shall be responsible for carrying
into effect all orders and resolutions of the Board of Directors. He shall be
the chief executive officer of the corporation and shall perform all duties
usually incident to the office of president and chief executive officer and such
other duties as may be from time to time prescribed by the Board of Directors;
except that if the Board of Directors elects a separate chief executive officer,
then the president shall perform such duties usually incident to the office of
president and the chief executive officer shall perform such duties usually
incident to the office of the chief executive officer and each of them shall
perform such duties as may be from time to time prescribed to each of them by
the Board of Directors.
5.5) Chief Operating Officer - The chief operating officer of the
corporation shall be responsible for directing and supervising the corporation's
overall business activities. He shall be the officer primarily responsible for
planning and carrying out the business policies of the corporation and shall
report to the Board of Directors thereon at each meeting of the Board of
Directors. He shall have such other responsibilities and shall exercise such
additional authority as may from time to time be assigned to him by the Board.
5.6) Vice President - Each vice-president shall have such powers and
shall perform such duties as may be specified in these By-Laws or prescribed by
the Board of Directors. In the event of absence or disability of the president,
a vice-president shall succeed to his powers and duties in the order in which
they are elected or as otherwise prescribed by the Board of Directors. A vice-
president who is not a director shall not succeed to the office of president.
5.7) Secretary - The secretary shall be secretary of and shall attend
all meetings of the shareholders and Board of Directors. He shall act as clerk
thereof and shall record all the proceedings of such meetings in the minute book
of the corporation. He shall give proper notice of meetings of shareholders and
directors. He shall keep the seal of the corporation and shall affix the same to
any instrument requiring it and shall attest the seal by his signature. He
shall, with the president or any vice-president, acknowledge all certificates
for shares of the corporation and shall perform such other duties as may be
prescribed from time to time by the Board of Directors.
5.8) Treasurer and Chief Financial Officer - The treasurer shall keep
accurate accounts of all moneys of the corporation received or disbursed. He
shall deposit all moneys, drafts, and checks in the name and to the credit of
the corporation in such banks and depositories as the Board of Directors shall
designate from time to time. He shall endorse for deposit all notes, checks and
drafts received by the corporation as ordered by the Board of Directors, making
proper vouchers therefor.
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He shall disburse the funds of the corporation as authorized by the Board of
Directors. He shall render to the president and the Board of Directors, whenever
required, an account of all of his transactions as treasurer and of the
financial condition of the corporation and shall perform such other duties as
may be prescribed by the Board of Directors from time to time.
5.9) Assistant Officers - In the event of absence or disability of any
vice-president, secretary, or treasurer, such assistants to such officers shall
succeed to the powers and duties of the absent officer in the order in which
they are elected or as otherwise prescribed by the Board of Directors until such
principal officer shall resume his duties or a replacement is elected by the
Board of Directors. Such assistant officers shall exercise such other powers and
duties as may be delegated to them from time to time by the Board of Directors,
but they shall be subordinate to the principal officer they are designated to
assist.
5.10) Officers Shall Not Lend Corporate Credit - Except for the proper
use of the corporation, no officer of this corporation shall sign or endorse in
the name or on behalf of this corporation, or in his official capacity, any
obligations for the accommodation of any other party or parties, nor shall any
check, note, bond, stock certificate or other security or thing of value
belonging to this company be used by any officer or director as collateral for
any obligation other than valid obligations of this corporation.
ARTICLE 6
INDEMNIFICATION
Any person who at any time shall serve or shall have served as a
director, officer, employee or agent of the Corporation, and the heirs,
executors and administrators of such person shall be indemnified by the
Corporation in accordance with, and the fullest extent permitted by, the
provisions of the Delaware General Corporation Law, as it may be amended from
time to time.
ARTICLE 7
SHARES AND THEIR TRANSFER
7.1) Certificates of Stock - Every owner of stock of the corporation
shall be entitled to a certificate, to be in such form as the Board of Directors
prescribe, certifying the number of shares of stock of the corporation owned by
him. The certificates for such stock shall be numbered in the order in which
they shall be issued and shall be signed in the name of the corporation by the
president, and by the secretary, or by any other two (2) proper officers of the
corporation authorized by the Board of Directors. A record shall be kept of the
name of the person, firm or corporation owning the stock represented by each
such certificate, and the respective issue date thereof, and in the case of
cancellation, the respective dates of cancellation. Every certificate
surrendered to the corporation for exchange or transfer shall be canceled and no
other certificate or certificates shall be issued in exchange for any existing
certificates until such existing certificate shall have been so canceled except
in cases provided for in Article 7.5.
7.2) Facsimile Signature - Where any certificate is manually signed by
a transfer agent, a transfer clerk or by a registrar appointed by the Board of
Directors to perform such duties, a
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facsimile or engraved signature of the president and secretary or other proper
officer of the corporation authorized by the Board of Directors may be inscribed
on the certificate in lieu of the actual signature of such officer. The fact
that a certificate bears the facsimile signature of an officer who has ceased to
hold office shall not affect the validity of such certificate if otherwise
validly issued.
7.3) Issuance of Shares - Subject to the provisions and limitations of
Article 4 of the Certificate of Incorporation, the Board of Directors is
authorized to cause to be issued shares of the corporation, to the full amount
of such authorized shares, and at such times as may be determined by the Board
of Directors and as may be permitted by law.
7.4) Transfer of Shares - Transfer of shares on the books of the
corporation may be authorized only by the shareholder named in the certificate,
or by the shareholder's legal representative, or duly authorized
attorney-in-fact, and upon surrender for cancellation of the certificate or
certificates for such shares. The shareholder in whose name shares of stock
stand on the books of the corporation shall be deemed the owner thereof for all
purposes as regards the corporation; provided, that when any transfer of shares
shall be made as collateral security, and not absolutely, such facts, if known
to the secretary of the corporation, or to the transfer agent, shall be so
expressed in the entry of transfer.
7.5) Lost Certificates - Any shareholder claiming a certificate of
stock to be lost or destroyed shall make an affidavit or affirmation of that
fact in such form as the Board of Directors may require, and shall, if the
directors so require, give the corporation a bond of indemnity in form and with
one or more sureties satisfactory to the Board, in an amount determined by the
Board of Directors not exceeding double the value of the stock represented by
such certificate to indemnify the corporation, against any claim that may be
made against it on account of the alleged loss or destruction of such
certificate; whereupon a new certificate may be issued in the same tenor and for
the same number of shares as the one alleged to have been destroyed or lost.
7.6) Treasury Stock - Treasury stock shall be held by the corporation
subject to disposal by the Board of Directors, in accordance with the
Certificate of Incorporation and these By-Laws, and shall not have voting rights
nor participate in dividends.
7.7) Indebtedness of Shareholders - The corporation shall have a first
lien on all the shares of its capital stock and upon all dividends declared upon
the same for any indebtedness of the respective holders thereof to the
corporation.
7.8) Transfer Agent and Registrar - The Board of Directors may appoint
one or more transfer agents or transfer clerks, and may require all certificates
for shares to bear the signature or signatures of any of them.
ARTICLE 8
BOOKS AND RECORDS
8.1) Share Register; Dates of Issuance - The corporation shall keep at
its principal business office, or at another place or places within the United
States determined by the Board of Directors,
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a share register not more than one year old, containing the names and addresses
of the shareholders and the number and classes of shares held by each
shareholder. The corporation shall also keep, with the share register, a record
of the dates on which certificates or transaction statements representing shares
were issued.
8.2) Other Documents Required - A corporation shall keep at its
principal business office, or, if its principal business office is outside of
this state, shall make available at its registered office within ten days after
receipt by an officer of the corporation of a written demand for them made by a
person described in Article 8.4, originals or copies of:
1. Records of all proceedings of shareholders for the last three
years;
2. Records of all proceedings of the board for the last three
years;
3. Its articles and all amendments currently in effect;
4. Its by-laws and all amendments currently in effect;
5. Financial statements required by Article 8.7 and the financial
statement for the most recent interim period prepared in the
course of the operation of the corporation for distribution to
the shareholders or to a governmental agency as a matter of
public record;
6. Reports made to shareholders generally within the last three
years;
7. A statement of the names and usual business addresses of its
directors and principal officers;
8. Voting trust agreements; and
9. Shareholder control agreements.
8.3) Financial Records - A corporation shall keep appropriate and
complete financial records.
8.4) Right to Inspect - A shareholder, beneficial owner, or a holder of
a voting trust certificate has an absolute right, upon written demand, to
examine and copy, in person or by a legal representative, during the usual hours
for business, the share register and all documents referred to in Article 8.2. A
shareholder, beneficial owner, or a holder of a voting trust certificate has a
right, upon written demand, to examine and copy in person or by legal
representative, other corporate records during the usual hours for business,
only if the shareholder, beneficial owner, or holder of a voting trust
certificate demonstrates a proper purpose for the examination. A "proper
purpose" is one reasonably related to the person's interest as a shareholder,
beneficial owner, or holder of a voting trust certificate of the corporation.
8.5) Cost of Copies - Copies of all documents referred to in Article
8.2 shall be furnished at the expense of the corporation. A copy of the most
recently generated share register shall be
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furnished at the expense of the corporation if the requesting party shows a
proper purpose. In all other cases, the corporation may charge the requesting
party a reasonable fee to cover the expenses of providing the copy.
8.6) Computerized Records - The records maintained by the corporation,
including its share register, financial records, and minute books, may utilize
any information storage technique, including, for example, punched holes,
printed or magnetized spots, or microimages, even though that makes them
illegible visually, if the records can be converted, by machine and within a
reasonable time, into a form that is legible visually and whose contents are
assembled by related subject matter to permit convenient use by people in the
normal course of business. The corporation shall convert any of the records
referred to in Articles 8.1 and 8.2 upon the request of a person entitled to
inspect them, and the expense of the conversion shall be borne by the person who
bears the expense of copying pursuant to Article 8.5. A copy of the conversion
is admissible in evidence, and shall be accepted for all other purposes, to the
same extent as the existing or original records would be if they were legible
visually.
8.7) Financial Statements - The corporation shall upon written request
by a shareholder stating a proper purpose therefor, furnish annual financial
statements, including at least a balance sheet as of the end of each fiscal year
and a statement of income for the fiscal year, which shall be prepared on the
basis of accounting methods reasonable in the circumstances and may be
consolidated statements of the corporation and one or more of its subsidiaries.
In the case of statements audited by a public accountant, each copy shall be
accompanied by a report setting forth the opinion of the accountant on the
statements; in other cases, each copy shall be accompanied by a statement of the
president or other person in charge of the corporation's financial records
stating the reasonable belief of the person that the financial statements were
prepared in accordance with accounting methods reasonable in the circumstances,
describing the basis of presentation, and describing any respects in which the
financial statements were not prepared on a basis consistent with those prepared
for the previous year.
ARTICLE 9
DISTRIBUTIONS
9.1) Distributions - The Board of Directors may authorize distributions
by the corporation from funds legally available therefor at such times and in
such amounts as the Board shall deem reasonable.
9.2) Record Date - Subject to any provisions of the Certificate of
Incorporation, the Board of Directors may fix a date preceding the date fixed
for the payment of any distribution or allotment of other rights as the record
date for the determination of the shareholders entitled to receive payment of
such distribution or allotment notwithstanding any transfer of shares on the
books of the Corporation after such record date.
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9.3) Restrictions - A distribution may be made to the holders of a
class or series of shares only if:
1. All amounts payable to the holders of shares having a
preference for the payment of that kind of distribution are
paid; and
2. The payment of the distribution does not reduce the remaining
net assets of the corporation below the aggregate preferential
amount payable in the event of liquidation to the holders of
shares having preferential rights, unless the distribution is
made to those shareholders in the order and to the extent of
their respective priorities.
3. The money or property available for distribution is
insufficient to satisfy all preferences, the distributions
shall be made pro rate according to the order of priority of
preferences by classes and by series within those classes.
ARTICLE 10
FINANCIAL AND PROPERTY MANAGEMENT
10.1) Fiscal Year - The fiscal year of the corporation shall be set by
the Board of Directors.
10.2) Audit of Books and Accounts - The books and accounts of the
corporation shall be audited at such times as may be ordered by the Board of
Directors.
10.3) Contracts - The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation, and such authority
may be general or confined to specific instances.
10.4) Checks - All checks, drafts, or other orders for the payment of
money, notes, or other evidences of indebtedness issued in the name of the
corporation shall be signed by the treasurer or such other officer or officers,
agent or agents of the corporation and in such manner as shall from time to time
be determined by resolution of the Board of Directors.
10.5) Deposits - All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the corporation in such
banks, trust companies, or other depositories as the Board of Directors may
select.
10.6) Voting Securities Held by Corporation - The president or other
agent designated by the Board of Directors, shall have full power and authority
on behalf of the corporation to attend, act and vote at any meeting of security
holders of other corporations in which this corporation may hold securities. At
such meeting the president, or such other agent, shall possess and exercise any
and all rights and powers incident to the ownership of such securities which the
corporation might possess and exercise.
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ARTICLE 11
WAIVER OF NOTICE
Whenever any notice whatsoever is required to be given by these By-Laws
or the Certificate of Incorporation of the corporation or any of the corporate
laws of the State of Delaware, a waiver thereof in writing, signed by the person
or persons entitled to said notice, either before, at, or after the time stated
therein, shall be deemed equivalent thereto.
ARTICLE 12
AMENDMENTS
Subject to the limitations set forth in the Delaware General
Corporation Law, these By-Laws may be amended by a vote of the majority of the
whole Board of Directors at any meeting, provided that notice of such proposed
amendment shall have been included in the notice of such meeting given to the
directors.
The undersigned Secretary hereby certifies that the foregoing Amended
and Restated By- Laws were adopted as the complete By-Laws of the corporation by
the Board of Directors on this 23rd day of January, 2002.
/s/ Patrick Delaney
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Patrick Delaney, Secretary
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