Exhibit 3
BYLAWS
OF
INSYNQ, INC.
Dated April 27, 2000
BYLAWS
OF
INSYNQ, INC.
TABLE OF CONTENTS
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Page
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ARTICLE I OFFICES.................................................................................... 1
1.01 Registered Office............................................................................ 1
1.02 Other Offices................................................................................ 1
ARTICLE II MEETINGS OF THE STOCKHOLDERS.............................................................. 1
2.01 Place of Meetings............................................................................ 1
2.02 Annual Meeting............................................................................... 1
2.03 Special Meetings............................................................................. 1
2.04 Notice of Annual or Special Meeting.......................................................... 1
2.05 Business at Special Meeting.................................................................. 2
2.06 Quorum of Stockholders....................................................................... 2
2.07 Act of Stockholders' Meeting................................................................. 2
2.08 Voting of Shares............................................................................. 2
2.09 Proxies...................................................................................... 2
2.10 Voting List.................................................................................. 3
2.11 Action by Written Consent Without a Meeting.................................................. 3
ARTICLE III BOARD OF DIRECTORS....................................................................... 4
3.01 Powers....................................................................................... 4
3.02 Number of Directors.......................................................................... 4
3.03 Election and Term............................................................................ 4
3.04 Vacancies.................................................................................... 4
3.05 Resignation and Removal...................................................................... 5
3.06 Compensation of Directors.................................................................... 5
3.07 Chairman of the Board........................................................................ 5
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ARTICLE IV MEETINGS OF THE BOARD..................................................................... 5
4.01 First Meeting................................................................................ 5
4.02 Regular Meetings............................................................................. 5
4.03 Special Meetings............................................................................. 6
4.04 Business at Regular or Special Meeting....................................................... 6
4.05 Quorum of Directors.......................................................................... 6
4.06 Interested Directors......................................................................... 6
4.07 Act of Directors' Meeting.................................................................... 7
4.08 Action by Written Consent Without a Meeting.................................................. 7
ARTICLE V COMMITTEES................................................................................. 7
ARTICLE VI NOTICES................................................................................... 7
6.01 Methods of Giving Notice..................................................................... 7
6.02 Waiver of Notice............................................................................. 8
6.03 Attendance as Waiver......................................................................... 8
ARTICLE VII ACTION WITHOUT A MEETING BY USE OF CONFERENCE TELEPHONE OR SIMILAR COMMUNICATIONS
EQUIPMENT........................................................................................ 8
ARTICLE VIII OFFICERS................................................................................ 8
8.01 Executive Officers........................................................................... 8
8.02 Election and Qualification................................................................... 8
8.03 Salaries..................................................................................... 9
8.04 Term, Removal, and Vacancies................................................................. 9
8.05 Chief Executive Officer...................................................................... 9
8.06 President.................................................................................... 9
8.07 Vice Presidents.............................................................................. 9
8.08 Secretary.................................................................................... 9
8.09 Assistant Secretaries........................................................................ 10
8.10 Treasurer.................................................................................... 10
8.11 Assistant Treasurers......................................................................... 10
8.12 Officer's Bond............................................................................... 10
ARTICLE IX INDEMNIFICATION........................................................................... 10
9.01 Indemnification by the Corporation........................................................... 10
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Page
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9.02 Expenses; Procedure.......................................................................... 11
9.03 Additional Indemnification................................................................... 11
9.04 Definition................................................................................... 11
ARTICLE X CERTIFICATES FOR SHARES.................................................................... 11
10.01 Certificates Representing Shares............................................................. 11
10.02 Restriction on Transfer of Shares............................................................ 12
10.03 Voting Agreements............................................................................ 12
10.04 Transfer of Shares........................................................................... 12
10.05 Lost, Stolen or Destroyed Certificates....................................................... 12
10.06 Closing of Transfer Books and Record Date.................................................... 13
10.07 Registered Stockholders...................................................................... 13
ARTICLE XI GENERAL PROVISIONS........................................................................ 14
11.01 Dividends.................................................................................... 14
11.02 Reserves..................................................................................... 14
11.03 Negotiable Instruments....................................................................... 14
11.04 Fiscal Year.................................................................................. 14
11.05 Seal......................................................................................... 14
11.06 Books and Records............................................................................ 14
ARTICLE XII AMENDMENTS............................................................................... 15
iii
BYLAWS
OF
INSYNQ, INC.
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ARTICLE I
OFFICES
1.01 Registered Office. The registered office, until changed by action of
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the Board of Directors, shall be located in the City of Wilmington, County of
New Castle, State of Delaware.
1.02 Other Offices. The corporation also may have offices at such other
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places both within and without the State of Delaware as the Board of Directors
may from time to time determine or as the business of the corporation may
require.
ARTICLE II
MEETINGS OF THE STOCKHOLDERS
2.01 Place of Meetings. All meetings of stockholders for the election of
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directors or for any other proper purpose shall be held at such place within or
without the State of Delaware as the Board of Directors may from time to time
designate, as stated in the notice of such meeting or a duly executed waiver of
notice thereof.
2.02 Annual Meeting. An annual meeting of stockholders shall be held on the
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second Tuesday of the fourth month following the end of the corporation's fiscal
year or at such time and date as the Board of Directors may determine; provided,
that whenever such date falls on a legal holiday, the annual meeting shall be
held on the next succeeding business day. At such meeting the stockholders
entitled to vote thereat shall elect a Board of Directors and may transact such
other business as properly may be brought before the meeting.
2.03 Special Meetings. Special meetings of stockholders may be called by
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the Chairman of the Board of Directors, the President, the Board of Directors,
or the holders of at least twenty-five percent (25%) of all the shares entitled
to vote at the proposed special meeting. If not
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otherwise fixed in accordance with these Bylaws, the record date for determining
stockholders entitled to call a special meeting is the date the first
stockholder signs the notice of such meeting.
2.04 Notice of Annual or Special Meeting. Written or printed notice stating
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the place, day, and hour of the meeting and, in the case of a special meeting,
the purpose or purposes for which the meeting is called shall be delivered not
less than 10 nor more than 60 days before the date of the meeting, either
personally or by mail, by or at the direction of the President, the Secretary or
the officer or person calling the meeting, to each stockholder entitled to vote
at such meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail, addressed to the stockholder at the
stockholder's address as it appears on the stock transfer records of the
corporation, with postage thereon prepaid.
2.05 Business at Special Meeting. The business transacted at any special
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meeting of stockholders shall be limited to the purposes stated in the notice
thereof.
2.06 Quorum of Stockholders. Unless otherwise provided in the Certificate
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of Incorporation, with respect to any matter, the holders of one-third of the
shares entitled to vote on that matter, represented in person or by proxy, shall
constitute a quorum at a meeting of stockholders. If, however, a quorum shall
not be present or represented at any meeting of the stockholders, the holders of
a majority of the shares represented in person or by proxy at the meeting shall
have the power to adjourn the meeting until such time and to such place as they
shall determine, without notice other than announcement at the meeting. At such
adjourned meeting at which a quorum shall be present or represented, any
business may be transacted that might have been transacted at the meeting as
originally notified. The stockholders present at a duly organized meeting may
continue to transact business until adjournment, and the subsequent withdrawal
of any stockholder or the refusal of any stockholder to vote shall not affect
the presence of a quorum at the meeting.
2.07 Act of Stockholders' Meeting. With respect to any matter, other than
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the election of directors or a matter for which the affirmative vote of the
holders of a specified portion of the shares entitled to vote is required by law
or the Certificate of Incorporation or otherwise by these Bylaws, the
affirmative vote of the holders of a majority of the shares entitled to vote on
that matter and represented in person or by proxy at a meeting of stockholders
at which a quorum is present shall be the act of stockholders. Unless otherwise
provided in the Certificate of Incorporation, directors shall be elected by a
plurality of the votes cast by the holders of shares entitled to vote in the
election of directors at a meeting of stockholders at which a quorum is present.
2.08 Voting of Shares. Each outstanding share, regardless of class, shall
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be entitled to one vote on each matter submitted to a vote at a meeting of
stockholders, except to the extent otherwise provided by law or the Certificate
of Incorporation. At each election for directors, every stockholder entitled to
vote at such election shall have the right to vote the number of shares owned by
the stockholder for as many persons as there are directors to be elected and for
whose election the stockholder has the right to vote. Unless permitted by the
Certificate of Incorporation, no stockholder shall be entitled to cumulate such
stockholder's votes by giving one candidate as many votes as the
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number of such directors to be elected multiplied by the number of shares owned
by such stockholder or by distributing such votes on the same principle among
any number of such candidates.
2.09 Proxies. At any meeting of the stockholders, each stockholder having
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the right to vote shall be entitled to vote either in person or by proxy
executed in writing by the stockholder or the stockholder's duly authorized
attorney-in-fact. A telegram, telex, cablegram, or similar transmission by the
stockholder or a photographic, photostatic, facsimile, or similar reproduction
of a writing executed by the stockholder shall be treated as an execution in
writing for purposes of this Section. No proxy shall be valid after 3 years from
the date of its execution unless otherwise provided in the proxy. Each proxy
shall be revocable unless the proxy form conspicuously states that the proxy is
irrevocable and the proxy is coupled with an interest. An irrevocable proxy, if
noted conspicuously on the certificate representing the shares that are subject
to the irrevocable proxy, shall be specifically enforceable against the holder
of those shares or any successor or transferee of the holder. Unless noted
conspicuously on the certificate representing the shares that are subject to the
irrevocable proxy, an irrevocable proxy, even though otherwise enforceable, is
ineffective against a transferee for value without actual knowledge of the
existence of the irrevocable proxy at the time of the transfer or against any
subsequent transferee (whether or not for value), but such an irrevocable proxy
shall be specifically enforceable against any other person who is not a
transferee for value from and after the time that the person acquires actual
knowledge of the existence of the irrevocable proxy.
2.10 Voting List. The officer or agent having charge of the stock transfer
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records for shares of the corporation shall make, at least 10 days before each
meeting of stockholders, a complete list of the stockholders entitled to vote at
such meeting or any adjournment thereof, arranged in alphabetical order, with
the address of and number of shares held by each stockholder, which list, for a
period of 10 days prior to such meeting, shall be kept on file at the registered
office or principal place of business of the corporation and shall be subject to
inspection by any stockholder at any time during usual business hours. Such list
also shall be produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any stockholder during the whole time of
the meeting. The original stock transfer records shall be prima-facie evidence
as to who are the stockholders entitled to examine such list or transfer records
or to vote at any such meeting of stockholders.
2.11 Action by Written Consent Without a Meeting. Any action required or
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permitted by law, the Certificate of Incorporation or these Bylaws to be taken
at a meeting of the stockholders may be taken without a meeting, without prior
notice, and without a vote, if a consent in writing, setting forth the action so
taken, is signed by the holders of shares having not less than the minimum
number of votes that would be necessary to take such action at a meeting at
which the holders of all shares entitled to vote on the action were present and
voting. Consent does not have to be unanimous. Every written consent signed by
the holders of less than all of the shares entitled to vote with respect to the
action that is the subject of the consent must bear the date of signature of
each stockholder who signs the consent. No written consent signed by the holders
of less than all of the shares entitled to vote with respect to the action that
is the subject of the consent shall be effective to take the action that is the
subject of the consent unless, within 60 days after the date of the earliest
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dated consent delivered to the corporation in the manner required by this
Section 2.11, a consent or consents signed by the holder or holders of shares
having not less than the minimum number of votes that would be necessary to take
the action that is the subject of the consent are delivered to the corporation
by delivery to its registered office, registered agent, principal place of
business, transfer agent, registrar, exchange agent or an officer or agent of
the corporation having custody of the books in which proceedings of meetings of
stockholders are recorded. Delivery shall be by hand or certified or registered
mail, return receipt requested. Delivery to the corporation's principal place of
business shall be addressed to the President or Chief Executive Officer of the
corporation. A telegram, telex, cablegram, or similar transmission by a
stockholder, or a photographic, photostatic, facsimile, or similar reproduction
in writing signed by a stockholder, shall be regarded as signed by the
stockholder for purposes of this Section 2.11. Prompt notice of the taking of
any action by stockholders without a meeting by less than unanimous written
consent shall be given to those stockholders who did not consent in writing to
the action.
ARTICLE III
BOARD OF DIRECTORS
3.01 Powers. The powers of the corporation shall be exercised by or under
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the authority of, and the business and affairs of the corporation shall be
managed under the direction of, the Board of Directors, which may exercise all
such powers of the corporation and do all such lawful acts and things as are not
by law, the Certificate of Incorporation, or these Bylaws directed or required
to be exercised and done by the stockholders.
3.02 Number of Directors. The Board of Directors shall consist of not less
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than one nor more than eleven directors. The initial Board of Directors shall be
fixed by the Certificate of Incorporation; thereafter, the number of directors
shall be determined by resolution of the Board of Directors, but no decrease in
the number of directors shall have the effect of shortening the term of any
incumbent director.
3.03 Election and Term. The directors, other than the initial Board of
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Directors, shall be elected at each annual meeting of the stockholders, except
as provided in Section 3.04 of this Article, and each director elected shall
hold office until the next succeeding annual meeting and until the director's
successor is elected and qualified or until the director's death, resignation,
or removal in accordance with these Bylaws. Except as may be provided by the
Certificate of Incorporation, directors need not be residents of the State of
Delaware or stockholders of the corporation.
3.04 Vacancies. Any vacancy occurring in the Board of Directors may be
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filled by an election at an annual meeting or a special meeting of the
stockholders called for that purpose or by the affirmative vote of a majority of
the remaining directors although less than a quorum of the Board of Directors. A
director elected to fill a vacancy shall be elected for the unexpired term of
such director's predecessor in office. Any directorship to be filled by reason
of an increase in the number of directors may be filled by election at an annual
meeting or at a special meeting of the stockholders
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called for that purpose or may be filled by the Board of Directors for a term of
office continuing only until the next election of one or more directors by the
stockholders; provided that the Board of Directors may not fill more than two
such directorships during the period between any two successive annual meetings
of stockholders.
Notwithstanding the preceding provisions of this section, whenever the
holders of any class or series of shares or group of classes or series of shares
are entitled to elect one or more directors by the provisions of the Certificate
of Incorporation, any vacancies in such directorships and any newly created
directorships of such class or series to be filled by reason of an increase in
the number of such directors may be filled by the affirmative vote of a majority
of the directors elected by such class or series, or by such group, then in
office or by a sole remaining director so elected, or by vote of the holders of
the outstanding shares of such class or series or of such group, and such
directorships shall not in any case be filled by the vote of the remaining
directors or the holders of the outstanding shares as a whole unless otherwise
provided in the Certificate of Incorporation.
3.05 Resignation and Removal. Any director may resign at any time upon
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giving written notice to the corporation. At any special meeting of stockholders
called expressly for the purpose of removing a director or directors or at an
annual meeting of stockholders, any director or the entire Board of Directors
may be removed, with or without cause, by a vote of the holders of a majority of
the shares then entitled to vote at an election of directors.
3.06 Compensation of Directors. As specifically prescribed from time to
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time by resolution of the Board of Directors, the directors of the corporation
may be paid their expenses of attendance at each meeting of the Board and may be
paid a fixed sum for attendance at each meeting of the Board or a stated salary
in their capacity as directors. This provision shall not preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
3.07 Chairman of the Board. The Board of Directors, at its first meeting
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after each annual meeting of stockholders, may elect one of its members Chairman
of the Board. The Chairman of the Board shall preside at all meetings of the
Board of Directors and shall have such other powers and duties as usually
pertain to such position or as may be delegated by the Board of Directors.
ARTICLE IV
MEETINGS OF THE BOARD
4.01 First Meeting. The first meeting of each newly elected Board of
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Directors shall be held without notice immediately following the stockholders'
annual meeting at which such directors were elected, at the same place as such
stockholders' meeting or at such other time and place either within or without
the State of Delaware as shall be designated by the Secretary upon the written
request of a majority of the directors then elected.
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4.02 Regular Meetings. Regular meetings of the Board of Directors may be
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held with or without notice at such time and at such place either within or
without the State of Delaware as from time to time shall be prescribed by
resolution of the Board of Directors.
4.03 Special Meetings. Special meetings of the Board of Directors may be
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called by the Chairman of the Board of Directors or the President, and shall be
called by the Chairman of the Board, the President, or the Secretary on the
written request of two directors. Written notice of special meetings of the
Board of Directors shall be given to each director at least 24 hours prior to
the time of the meeting.
4.04 Business at Regular or Special Meeting. Neither the business to be
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transacted at, nor the purpose of, any regular or special meeting of the Board
of Directors need be specified in the notice or waiver of notice of such
meeting.
4.05 Quorum of Directors. A majority of the Board of Directors shall
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constitute a quorum for the transaction of business, unless the law or the
Certificate of Incorporation requires a greater number. If a quorum shall not be
present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement of the meeting, until a quorum shall be participating.
4.06 Interested Directors. No contract or transaction between the
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corporation and one or more of its directors or officers, or between the
corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers or have a financial interest, shall be void or voidable solely for this
reason, solely because the director or officer is present at or participates in
the meeting of the Board of Directors or committee thereof that authorizes the
contract or transaction, or solely because any such director's or officer's
votes are counted for such purpose, if:
(a) The material facts as to the director's or officer's relationship
or interest and as to the contract or transaction are disclosed or are
known to the Board of Directors or the committee, and the Board of
Directors or committee in good faith authorizes the contract or transaction
by the affirmative vote of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum; or
(b) The material facts as to the director's or officer's relationship
or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(c) The contract or transaction is fair as to the corporation as of
the time it is authorized, approved, or ratified by the Board of Directors,
a committee thereof, or the stockholders.
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Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee that authorizes
the contract or transaction.
4.07 Act of Directors' Meeting. The act of a majority of the directors
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present at a meeting at which a quorum is present shall be the act of the Board
of Directors unless applicable law or the Certificate of Incorporation requires
the act of a greater number.
4.08 Action by Written Consent Without a Meeting. Any action required
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or permitted to be taken at a meeting of the Board of Directors or any committee
thereof may be taken without a meeting if a consent in writing, setting forth
the action so taken, is signed by all members of the Board of Directors or
committee, as the case may be. Such consent shall have the same force and effect
as a unanimous vote at such meeting.
ARTICLE V
COMMITTEES
The Board of Directors, by resolution adopted by a majority of the full
Board of Directors, may designate from among its members one or more committees,
each of which shall be comprised of one or more of its members, and may
designate one or more of its members as alternate members of any committee, who
may, subject to any limitations imposed by the Board of Directors, replace
absent or disqualified members at any meeting of that committee. Any such
committee, to the extent provided in such resolution or in the Certificate of
Incorporation, shall have and may exercise all of the authority of the Board of
Directors, subject to the limitations imposed by applicable law. Vacancies in
the membership of the committee shall be filled by the Board of Directors at a
regular or special meeting of the Board of Directors. All committees shall keep
regular minutes of their proceedings and report the same to the Board of
Directors when required. The designation of a committee of the Board of
Directors and the delegation thereto of authority shall not operate to relieve
the Board of Directors, or any member thereof, of any responsibility imposed
upon it or such member by law. To the extent applicable, the provisions of
Article IV of these Bylaws governing the meetings of the Board of Directors
shall likewise govern the meetings of any committee thereof.
ARTICLE VI
NOTICES
6.01 Methods of Giving Notice. Whenever any notice is required to be
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given to any stockholder or director under the provisions of any law, the
Certificate of Incorporation, or these Bylaws, it shall be given in writing and
delivered personally or mailed to such stockholder or director at such address
as appears on the records (or in the case of a stockholder, the stock transfer
books) of the corporation, and such notice shall be deemed to be delivered upon
receipt, if delivered personally, or at the time when the same shall be
deposited in the United States mail with sufficient postage
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thereon prepaid. Notice to directors also may be given by telegram, telex,
telecopy or similar means of visual transmission, and notice given by such means
shall be deemed given at the time it is reflected in any confirmation of
receipt.
6.02 Waiver of Notice. Whenever any notice is required to be given to
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any stockholder or director under the provisions of any law, the Certificate of
Incorporation, or these Bylaws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
6.03 Attendance as Waiver. Attendance of a stockholder, director or
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committee member at a meeting shall constitute a waiver of notice of such
meeting, except when a stockholder, director or committee member attends a
meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
ARTICLE VII
ACTION WITHOUT A MEETING BY USE OF
CONFERENCE TELEPHONE
OR SIMILAR COMMUNICATIONS EQUIPMENT
Subject to the provisions hereof requiring or permitting notice of
meeting, unless otherwise restricted by the Certificate of Incorporation or
these Bylaws, stockholders, members of the Board of Directors, or members of any
committee designated by such Board of Directors may participate in and hold a
meeting of such stockholders, Board of Directors, or 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
such a meeting shall constitute presence in person at such meeting, except where
a person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE VIII
OFFICERS
8.01 Executive Officers. The officers of the corporation shall consist
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of a President and a Secretary, and may also include one or more Vice
Presidents, a Treasurer, and such other officers as are provided for in this
Article. Any Vice President of the corporation may, by the addition of a number
or a word or words before or after the title "Vice President," be designated
"Senior Executive," "Executive," "Senior," "Trust," "Second," or "Assistant"
Vice President. Each officer of the corporation shall be elected by the Board of
Directors as provided in Section 8.02 of this Article. Any two or more offices
may be held by the same person.
8.02 Election and Qualification. The Board of Directors, at its first
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meeting after each annual meeting of stockholders, shall elect a President and a
Secretary. The Board of Directors also
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may elect one or more Vice Presidents, a Treasurer, and such other officers,
including assistant officers and agents, as may be deemed necessary, who shall
hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors.
8.03 Salaries. The salaries of all officers and agents of the
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corporation shall be fixed by resolution of the Board of Directors.
8.04 Term, Removal, and Vacancies. Each officer of the corporation
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shall hold office until such officer's successor is chosen and qualified or
until such officer's death, resignation or removal. Any officer may resign at
any time upon giving written notice to the corporation. Any officer or agent or
member of a committee elected or appointed by the Board of Directors may be
removed by the Board of Directors whenever in its judgment the best interests of
the corporation will be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Election or
appointment of an officer or agent or member of a committee shall not of itself
create contract rights. Any vacancy occurring in any office of the corporation
by death, resignation, removal or otherwise shall be filled by the Board of
Directors.
8.05 Chief Executive Officer. Unless the Board of Directors designates
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otherwise, the President shall be the Chief Executive Officer of the
corporation. The Chief Executive Officer shall preside at all meetings of the
stockholders. The Chief Executive Officer shall have such other powers and
duties as usually pertain to such office or as may be delegated by the Board of
Directors.
8.06 President. The President shall have such powers and duties as
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usually pertain to such office, except as the same may be modified by the Board
of Directors. Unless the Board of Directors shall otherwise delegate such
duties, the President shall be ex-officio a member of all standing committees,
shall have general powers of oversight, supervision, and management of the
business and affairs of the corporation, and shall see that all orders and
resolutions of the Board of Directors are carried into effect. The President
shall execute bonds, mortgages, instruments, contracts, agreements, and other
documentation, except when the signing and execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent of the
corporation.
8.07 Vice Presidents. Unless otherwise determined by the Board of
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Directors, one of the Vice Presidents shall, in the absence or disability of the
President, perform the duties and exercise the powers of the President. The
various Vice Presidents shall perform such other duties and have such other
powers as the Board of Directors shall prescribe or as the President shall
delegate.
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8.08 Secretary. The Secretary shall attend all meetings of the Board of
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Directors and of the stockholders, record all the proceedings of the meetings of
the Board of Directors and of the stockholders in a book to be kept for that
purpose, and shall perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings as may be prescribed by the Board of
Directors or the President. The Secretary shall keep in safe custody the seal of
the corporation, and, when authorized by the Board of Directors, affix the same
to any instrument requiring it, and, when so affixed, it shall be attested by
the Secretary's signature or by the signature of an Assistant Secretary, or if
there be none, the signature of the Treasurer acting as Assistant Secretary.
8.09 Assistant Secretaries. An Assistant Secretary, unless otherwise
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determined by the Board of Directors, shall, in the absence or disability of the
Secretary, perform the duties and exercise the powers of the Secretary. An
Assistant Secretary shall perform such other duties and have such other powers
as the Board of Directors may from time to time prescribe.
8.10 Treasurer. The Treasurer shall have the custody of the corporate
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funds and securities, shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation, and shall deposit all
moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and shall
render to the President and the Board of Directors at its regular meetings, or
when the Board of Directors so requires, an account of all such person's
transactions as Treasurer, and of the financial condition of the corporation.
8.11 Assistant Treasurers. An Assistant Treasurer, unless otherwise
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determined by the Board of Directors, shall, in the absence or disability of the
Treasurer, perform the duties and exercise the powers of the Treasurer. An
Assistant Treasurer shall perform such other duties and have such other powers
as the Board of Directors may from time to time prescribe.
8.12 Officer's Bond. If required by the Board of Directors, any officer
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so required shall give the corporation a bond (which shall be renewed as the
Board of Directors may require) in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful performance of
the duties of such officer's office and for the restoration to the corporation,
in case of such officer's death, resignation, retirement, or removal from
office, of any and all books, papers, vouchers, money, and other property of
whatever kind in such officer's possession or under such officer's control
belonging to the corporation.
ARTICLE IX
INDEMNIFICATION
9.01 Indemnification by the Corporation. The corporation shall
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indemnify any person who was, is, or is threatened to be made a named defendant
or respondent in a proceeding (as
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hereinafter defined) because the person (a) is or was a director or officer of
the corporation or (b) while a director or officer of the corporation, is or was
serving at the request of the corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic corporation, partnership, limited liability company,
joint venture, sole proprietorship, trust, employee benefit plan, or other
enterprise, to the fullest extent that a corporation may grant indemnification
to a person serving in such capacity under the Delaware General Corporation Law,
as the same exists or may hereafter be amended.
9.02 Expenses; Procedure. Such right shall be a contract right and
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shall include the right to be paid by the corporation for all expenses incurred
in defending any such proceeding in advance of its final disposition to the
maximum extent permitted under the Delaware General Corporation Law, as the same
exists or may hereafter be amended. If a claim for indemnification or
advancement of expenses hereunder is not paid in full by the corporation within
90 days after a written claim has been received by the corporation, the claimant
may at any time thereafter bring suit against the corporation to recover the
unpaid amount of the claim, and if successful in whole or in part, the claimant
shall be entitled to be paid also the expenses of prosecuting such claim. It
shall be a defense to any such action that such indemnification of advancement
of costs of defense are not permitted under the Delaware General Corporation
Law, but the burden of proving such defense shall be on the corporation. Neither
the failure of the corporation (including its Board of Directors or any
committee thereof, special legal counsel, or stockholders) to have made its
determination prior to the commencement of such action that indemnification of,
or advancement of costs of defense to, the claimant is permissible in the
circumstances nor an actual determination by the corporation (including its
Board of Directors or any committee thereof, special legal counsel, or
stockholders) that such indemnification or advancement is not permissible shall
be a defense to the action or create a presumption that such indemnification or
advancement is not permissible.
9.03 Additional Indemnification. The corporation may additionally
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indemnify any person covered by the grant of mandatory indemnification contained
above to such further extent as is permitted by law and may indemnify any other
person to the fullest extent permitted by law.
9.04 Definition. As used herein, the term "proceeding" means any
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threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, arbitrative, or investigative, any appeal in such an
action, suit, or proceeding, and any inquiry or investigation that could lead to
such an action, suit, or proceeding.
ARTICLE X
CERTIFICATES FOR SHARES
10.01 Certificates Representing Shares. The corporation shall deliver
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certificates in such form as may be determined by the Board of Directors
representing shares to which stockholders are entitled. Such certificates shall
be numbered and shall be entered in the books of the corporation as
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they are issued, and shall be signed by the President or Vice President and
Secretary or Assistant Secretary of the corporation, and may be sealed with the
seal of the corporation or a facsimile thereof. The signatures of such officers
upon a certificate may be facsimiles. In case any officer who has signed or
whose facsimile signature has been placed upon such certificate shall have
ceased to be such officer before such certificate is issued, it may be issued by
the corporation with the same effect as if such person were such officer at the
date of its issuance. If the corporation is authorized to issue shares of more
than one class, each certificate representing shares issued by the corporation
shall conspicuously set forth such provisions as are required by applicable law.
Each certificate representing shares shall state upon the face thereof that the
corporation is organized under the laws of the State of Delaware, the name of
the person to whom issued, the number and class of shares and the designation of
the series, if any, that such certificate represents and the par value of each
share represented by such certificate or a statement that the shares are without
par value. No certificate shall be issued for any share until the amount of the
consideration therefor, fixed as provided by law, has been fully paid.
10.02 Restriction on Transfer of Shares. If any restriction on the
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transfer, or registration of the transfer, of shares shall be imposed or agreed
to by the corporation, as permitted by law, the Certificate of Incorporation or
these Bylaws, such restriction shall be noted conspicuously on each certificate
representing shares in accordance with applicable law.
10.03 Voting Agreements. A written counterpart of any voting agreement
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entered into among any number of stockholders of the corporation, or any number
of stockholders of the corporation and the corporation itself, for the purpose
of providing that shares of the corporation shall be voted in the manner
prescribed in the agreement shall be deposited with the corporation at its
principal place of business or registered office and shall be subject to the
same right of examination by a stockholder of the corporation, in person or by
agent or attorney, as are the books and records of the corporation. The
existence of the agreement shall be noted conspicuously on the certificate
representing the shares that are subject to the agreement.
10.04 Transfer of Shares. Upon surrender to the corporation or the
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transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment 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 upon its books.
10.05 Lost, Stolen or Destroyed Certificates. The Board of Directors,
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the President or such other officer or officers of the corporation as the Board
of Directors may from time to time designate may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen or
destroyed upon the making of an affidavit of that fact by the person claiming
the certificate or certificates of stock to be lost, stolen or destroyed. When
issuing such of a new certificate or certificates, the Board of Directors, the
President or such other officer or officers, in its or their discretion and as a
condition precedent to the issuance thereof, may require the owner of such lost,
stolen, or destroyed certificate
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or certificates, or the owner's legal representative, to advertise the same in
such manner as it or they shall require and/or to give the corporation a bond in
such form, in such sum, and with such surety or sureties as it or they may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate or certificates alleged to have been lost,
stolen or destroyed.
10.06 Closing of Transfer Books and Record Date. For the purpose of
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determining stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive a distribution
by the corporation (other than a distribution involving a purchase or redemption
by the corporation of any of its own shares) (a "Distribution") or a share
dividend, or in order to make a determination of stockholders for any other
proper purpose (other than determining stockholders entitled to consent to
action taken by stockholders that is proposed to be taken without a meeting of
stockholders), the Board of Directors may provide that the share transfer
records shall be closed for a stated period but not to exceed, in any case, 60
days. If the share transfer records shall be closed for the purpose of
determining stockholders entitled to notice of or to vote at a meeting of
stockholders, such records shall be closed for at least 10 days immediately
preceding such meeting. In lieu of closing the share transfer records, the Board
of Directors may fix in advance a date as the record date for any such
determination of stockholders, such date in any case to be not more than 60 days
and, in case of a meeting of stockholders, not less than 10 days, prior to the
date on which the particular action requiring such determination of stockholders
is to be taken. If the share transfer records are not closed and no record date
is fixed for the determination of stockholders entitled to notice of or to vote
at a meeting of stockholders, or stockholders entitled to receive a Distribution
or a share dividend, the date on which notice of the meeting is mailed or the
date on which the resolution of the Board of Directors declaring such
Distribution or share dividend is adopted, as the case may be, shall be the
record date for such determination of stockholders. When a determination of
stockholders entitled to vote at any meeting of stockholders has been made as
provided in this Section 10.06, such determination shall apply to any
adjournment thereof, except when the determination has been made through the
closing of the share transfer records and the stated period of closing has
expired. Unless a record date shall have previously been fixed or determined
pursuant to this Section 10.06, whenever action by stockholders is proposed to
be taken by consent in writing without a meeting of stockholders, the Board of
Directors may fix a record date for the purpose of determining stockholders
entitled to consent to that action, which record date shall not precede, and
shall not be more than 10 days after, the date upon which the resolution fixing
the record date is adopted by the Board of Directors. If no record date has been
fixed by the Board of Directors and the prior action of the Board of Directors
is not required by law, the record date for determining stockholders entitled to
consent to action in writing without a meeting shall be the first date on which
a signed written consent setting forth the action taken or proposed to be taken
is delivered to the corporation as provided in Section 2.10. If no record date
shall have been fixed by the Board of Directors and prior action of the Board of
Directors is required by law, the record date for determining stockholders
entitled to consent to action in writing without a meeting shall be at the close
of business on the date on which the Board of Directors adopts a resolution
taking such prior action.
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10.07 Registered Stockholders. The corporation shall be entitled to
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treat the holder of record of any share or shares of stock as the holder in fact
thereof and, accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
ARTICLE XI
GENERAL PROVISIONS
11.01 Dividends. Dividends upon the outstanding shares of the
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corporation, except as provided by applicable law and the Certificate of
Incorporation, may be declared by the Board of Directors at any annual, regular
or special meeting. Dividends may be declared and paid in cash, in property or
in shares of the corporation or in any combination thereof. The declaration and
payment shall be at the discretion of the Board of Directors.
11.02 Reserves. There may be created from time to time by resolution of
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the Board of Directors, out of the earned surplus of the corporation, such
reserve or reserves as the directors in their discretion consider proper to
provide for contingencies, or to equalize dividends, or to repair or maintain
any property of the corporation, or for such other purpose as the directors
shall consider beneficial to the corporation, and the directors may modify or
abolish any such reserve in the manner in which it was created.
11.03 Negotiable Instruments. All bills, notes, checks or other
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instruments for the payment of money shall be signed or countersigned by such
officer or officers or such other person or persons and in such manner as are
permitted by these Bylaws or in such manner as the Board of Directors may from
time to time prescribe by resolution.
11.04 Fiscal Year. The fiscal year of the corporation shall be fixed
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by resolution of the Board of Directors.
11.05 Seal. The corporation may have a corporate seal and, if the Board
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of Directors adopts a corporate seal, the corporate seal shall have inscribed
thereon the name of the corporation and may be used by causing it or a facsimile
thereof to be impressed or affixed or in any other manner reproduced.
11.06 Books and Records. The corporation shall keep books and records
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of account and shall keep minutes of the proceedings of the stockholders, the
Board of Directors, and each committee of the Board of Directors. The
corporation shall keep at its registered office or principal place of business,
or at the office of its transfer agent or registrar, a record of the original
issuance of shares issued by the corporation and a record of each transfer of
those shares that have been presented to the corporation for registration of
transfer. Such records shall contain the names and addresses of all past and
current stockholders of the corporation and the number and class or series of
shares
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issued by the corporation held by each of them. Any books, records, minutes, and
share transfer records may be in written form or in any other form capable of
being converted into written form within a reasonable time.
ARTICLE XII
AMENDMENTS
These Bylaws shall be adopted by the Board of Directors. The Board of
Directors may amend or repeal these Bylaws or adopt new bylaws, unless (a) the
Certificate of Incorporation or applicable law reserves the power exclusively to
the stockholders in whole or in part or (b) the stockholders in amending,
repealing, or adopting a particular bylaw expressly provide that the Board of
Directors may not amend or repeal that bylaw. Unless the Certificate of
Incorporation or a bylaw adopted by the stockholders provides otherwise as to
all or some portion of the corporation's Bylaws, the stockholders may amend,
repeal, or adopt these Bylaws even though these Bylaws may also be amended,
repealed, or adopted by the Board of Directors.
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CERTIFICATE OF SECRETARY
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The undersigned does hereby certify that (i) the undersigned is the
duly elected and qualified Secretary of Insynq, Inc., a Delaware corporation
(the "Company"), and (ii) the foregoing is a true and correct copy of the Bylaws
of the Company reviewed and adopted by the Board of Directors of the Company as
of April 27, 2000.
/s/ M. Carroll Benton
-----------------------------
M. Carroll Benton, Secretary
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