EXHIBIT 3.1(b)
AMENDED AND RESTATED
BYLAWS
OF
ECHOSTAR COMMUNICATIONS CORPORATION
(effective July 6, 2003)
ARTICLE I
Principal Office and Corporate Seal
Section 1.1 - Offices. The initial principal office and place of
business of EchoStar Communications Corporation (the "Corporation") shall be at
90 Inverness Circle East, Englewood, Colorado 80112. Other offices and places of
business either within or outside Nevada or Colorado may be established from
time to time by resolution of the Board of Directors or as the business of the
Corporation may require. The registered office of the Corporation required by
Title 7, Chapter 78 of the Nevada Revised Statutes to be maintained in Nevada
may be changed from time to time by the Board of Directors.
Section 1.2 - Seal. The seal of the Corporation shall have inscribed
thereon the name of the Corporation and the word "Seal", and shall be in such
form as may be approved by the Board of Directors, which shall have the power to
alter the same at its pleasure. The Corporation may use the seal by causing it,
or a facsimile thereof, to be impressed or affixed or in any other manner
reproduced.
ARTICLE II
Shares and Transfer Thereof
Section 2.1 - Certificates. The shares of this Corporation shall be
represented by consecutively numbered certificates signed by the President or a
Vice President and the Secretary or an Assistant Secretary of the Corporation,
and may be, but are not required to be, sealed with the Seal of the Corporation
or a facsimile thereof. The signatures of the President or Vice President and
the Secretary or Assistant Secretary, upon a certificate, may be facsimiles if
the certificate is countersigned by a transfer agent, or registered by a
registrar, other than the Corporation itself or an employee of the Corporation.
In case any officer who has signed a 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 he were such officer at the date of its issue. Every
certificate representing shares issued by the Corporation which is authorized to
issue shares of more than one class or more than one series of any class shall
set forth on the face or back of the certificate or shall state that the
Corporation will furnish to any Shareholder upon request and without charge a
full statement of the
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designations, preferences, limitations and relative rights of the shares of each
class to be issued and if the Corporation is authorized to issue any preferred
or special class in series, the variations in the relative rights and
preferences between the shares of each such series, so far as the same have been
fixed and determined, and the authority of the Board of Directors to fix and
determine the relative rights and preferences of subsequent series.
Each certificate representing shares shall state the following upon the
face thereof: the name of the state of the Corporation's organization, the name
of the person to whom issued; the number and class of shares and the designation
of the series, if any, which such certificate represents; the par value of each
share, if any, represented by such certificate or a statement that the shares
are without par value. Certificates of stock shall be in such form consistent
with law as shall be prescribed by the Board of Directors. No certificate shall
be issued until the shares represented thereby are fully paid.
Section 2.2 - Record. A record shall be kept of the name of each person
or other entity holding the stock represented by each certificate for shares of
the Corporation issued, the number of shares represented by each such
certificate, the date thereof and, in the case of cancellation, the date of
cancellation. The person or other entity in whose name shares of stock stand on
the books of the Corporation shall be deemed the owner thereof, and thus a
holder of record of such shares of stock, for all purposes as regards the
Corporation.
Section 2.3 - Consideration for Shares. Shares shall be issued for such
consideration, expressed in dollars (but not less than the par value, if any,
thereof) as shall be fixed from time to time by the Board of Directors. That
part of the surplus of the Corporation which is transferred to stated capital
upon the issuance of shares as a share dividend shall be deemed the
consideration for the issuance of such dividend shares. Such consideration may
consist, in whole or in part, of money, other property, tangible or intangible,
or in labor or services actually performed for the Corporation, but neither
promissory notes nor future services shall constitute payment or part payment
for shares.
Section 2.4 - Cancellation of Certificates. No new certificates
evidencing shares shall be issued unless and until the old certificate or
certificates, in lieu of which the new certificate is issued, shall be
surrendered for cancellation, except as modified in Section 2.3 of this Article
II.
Section 2.5 - Lost Certificates. In case of loss or destruction of any
certificate of shares, another certificate may be issued in its place upon
satisfactory proof of such loss or destruction and, at the discretion of the
Corporation, upon giving to the Corporation a satisfactory bond of indemnity
issued by a corporate surety in an amount and for a period satisfactory to the
Board of Directors.
Section 2.6 - Closing of Transfer Books - Record Date. For the purpose
of determining Shareholders entitled to notice of or to vote at any meeting of
Shareholders, or any adjournment thereof, or entitled to receive payment of any
dividend, or in order to make a determination of Shareholders for any other
proper purpose, the Board of Directors may provide that the stock transfer books
shall be closed for a stated period, but not to exceed in any case sixty (60)
days. If the stock transfer books shall be closed for the purpose of determining
Shareholders entitled to
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notice of, or to vote at a meeting of Shareholders, such books shall be closed
for at least ten (10) days immediately preceding such meeting. In lieu of
closing the stock transfer books, the Board of Directors may fix in advance a
date as the record date for any such determination of Shareholders, such date in
any case to be not more than sixty (60) days prior to the date on which the
particular action requiring such determination of Shareholders is to be taken.
If the Board of Directors does not order the stock transfer books closed, or fix
in advance a record date, as above provided, then the record date for the
determination of Shareholders entitled to notice of, or to vote at any meeting
of Shareholders, or any adjournment thereof, or entitled to receive payment of
any dividend or for the determination of Shareholders for any proper purpose
shall be thirty (30) days prior to the date on which the particular action
requiring such determination of Shareholders is to be taken.
Section 2.7 - Transfer of Shares. Upon surrender to the Corporation or
to a transfer agent of the Corporation of a certificate of stock duly endorsed
or accompanied by proper evidence of succession, assignment or authority to
transfer, and such documentary stamps as may be required by law, it shall be the
duty of the Corporation to issue a new certificate to the person entitled
thereto, and cancel the old certificate. Every such transfer of stock shall be
entered on the stock book of the Corporation which shall be kept at its
principal office or by its registrar duly appointed.
The Corporation shall be entitled to treat the holder of record of any
share 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 on the
part of any other person whether or not it shall be express or other notice
thereof, except as may be required by the laws of Nevada.
Section 2.8 - Transfer Agents, Registrars and Paying Agents. The Board
may, at its discretion, appoint one or more transfer agents, registrars and
agents for making payment upon any class of stock, bond, debenture or other
security of the Corporation. Such agents and registrars may be located either
within or outside Nevada. They shall have such rights and duties and shall be
entitled to such compensation as may be agreed.
ARTICLE III
Shareholders and Meetings Thereof
Section 3.1 - Shareholders of Record. Only Shareholders of record on
the books of the Corporation shall be entitled to be treated by the Corporation
as holders in fact of the shares standing in their respective names, and the
Corporation shall not be bound to recognize any equitable or other claim to, or
interest in, any shares on the part of any other person, firm or corporation,
whether or not it shall have express or other notice thereof, except as
expressly provided by the laws of Nevada.
Section 3.2 - Place of Meeting. Meetings of Shareholders shall be held
at the principal office of the Corporation or at such other place, either within
or without Nevada, as shall be determined by the Board of Directors.
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Section 3.3 - Annual Meeting. The annual meeting of shareholders of the
Corporation for the election of directors, and for the transaction of such other
business as may properly come before the meeting, shall be held as determined by
resolution of the Board of Directors. If a quorum be not present, the meeting
may be adjourned from time to time, but no single adjournment shall exceed sixty
(60) days. The first annual meeting of Shareholders shall be held at such date
as the Board of Directors shall determine. If the election of directors shall
not be held at the annual meeting of Shareholders, or at any adjournment
thereof, the Board of Directors shall cause the election to be held at a special
meeting of Shareholders as soon thereafter as convenient.
Section 3.4 - Special Meeting. Special meetings of Shareholders for any
purpose unless otherwise prescribed by statute may be called by the President
(or in his absence by a Vice President), the Board of Directors, or the holders
of not less than one-third (1/3) of all shares entitled to vote on the subject
matter for which the meeting is called. Any holder or holders of not less than
one-third (1/3) of all of the outstanding shares of the Corporation who desire
to call a special meeting pursuant to this Article III, Section 3.4 shall notify
the President that a special meeting of the Shareholders shall be called. Within
thirty (30) days after notice to the President, the President shall set the
date, time and location of the Shareholders meeting.
Section 3.5 - Notice of Meeting. Written notice stating the place, day
and hour of the Shareholders' meeting, and in case of a special meeting of
Shareholders, the purpose or purposes for which the meeting is called, shall be
delivered not less than ten (10) days nor more than sixty (60) days before the
date of the meeting, either personally or by mail, by or at the direction of the
President, the Secretary, the Board of Directors, or the officer or persons
calling the meeting, to each Shareholder of record entitled to vote at such
meeting, except that if the authorized shares are to be increased, at least
thirty (30) days' notice shall be given. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail addressed to the
Shareholder at his address as it appears on the stock transfer books of the
Corporation, with postage thereon prepaid. Failure to deliver such notice or
obtain a waiver thereof shall not cause the meeting to be lost, but it shall be
adjourned by the Shareholders present for a period not to exceed sixty (60) days
until any deficiency to notice or waiver shall be supplied.
Section 3.6 - Adjournment. When a meeting is for any reason adjourned
to another time, notice will not be given of the adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting any business may be transacted which might have
been transacted at the original meeting.
Section 3.7 - Organization. The President or any Vice President shall
call meetings of Shareholders to order and act as chairman of such meetings. In
the absence of said officers, any Shareholder entitled to vote at that meeting,
or any proxy of any such Shareholder, may call the meeting to order and a
chairman shall be elected by a majority of the Shareholders entitled to vote at
that meeting. In the absence of the Secretary or any Assistant Secretary of the
Corporation, any person appointed by the chairman shall act as Secretary of such
meeting.
Section 3.8 - Agenda and Procedure. The Board of Directors shall have
the responsibility
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for establishing an agenda for each meeting of Shareholders, subject to the
rights of Shareholders to raise matters for consideration which may otherwise
properly be brought before the meeting although not included within the agenda.
The chairman shall be charged with the orderly conduct of all meetings of
Shareholders; provided, however, that in the event of any difference in opinion
with respect to the proper course of action which cannot be resolved by
reference to statute, or to the Articles of Incorporation, or these Bylaws,
Robert's Rules of Order (as last revised) shall govern the disposition of the
matter.
Section 3.9 - Voting Records. The officer or agent having charge of the
stock transfer books for shares of this Corporation shall make, at least ten
(10) days, before each meeting of Shareholders, a complete record of the
Shareholders entitled to vote at such meeting or any adjournment thereof,
arranged in alphabetical order, with the address of and the number of shares
held by each, which record, for a period of ten (10) days prior to such meeting,
shall be kept on file at the principal office of the Corporation, whether within
or without Nevada, and shall be subject to inspection by any Shareholder for any
purpose germane to the meeting at any time during the whole time of the meeting.
The original stock transfer books shall be prima facie evidence as to who are
the Shareholders entitled to examine such record or transfer books or to vote at
any meeting of Shareholders.
Section 3.10 - Quorum. A quorum at any meeting of Shareholders shall
consist of a majority of the shares of the Corporation entitled to vote thereat
represented in person or by proxy. If a quorum is present, the affirmative vote
of a majority of the shares represented at the meeting and entitled to vote on
the subject matter shall be the act of the Shareholders. If fewer than a
majority of the outstanding shares are represented at a meeting, a majority of
the shares so represented may adjourn the meeting without further notice for a
period not to exceed sixty (60) days at any one adjournment. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. The Shareholders present at a duly organized meeting may continue to
transact business until adjourned, notwithstanding the withdrawal of
Shareholders so that less than a quorum remains.
Section 3.11 - Proxies. A Shareholder may vote either in person or by
proxy executed in writing by the Shareholder or by his duly authorized attorney
in fact. No proxy shall be valid after six (6) months from the date of Its
execution, unless otherwise provided in the proxy.
Section 3.12 - Action by Written Consent. Unless the Articles of
Incorporation or these Bylaws specifically provide otherwise, any action
required or permitted to be taken at a meeting of shareholders may be taken
without a meeting if, before or after the action, a written consent thereto is
signed by shareholders holding at least a majority of the voting power, except
that if any greater proportion of voting power is required for such action at a
meeting, then such greater proportion of written consents shall be required. In
no instance where action is authorized by written consent need a meeting of
shareholders be called or noticed.
Section 3.13 - Voting of Shares. Each outstanding share, regardless of
class, shall be entitled to one vote, and each fractional share shall be
entitled to a corresponding fractional vote on
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each matter submitted to a vote at a meeting of Shareholders, except as may be
otherwise provided in the Articles of Incorporation. If the Articles of
Incorporation provide for more or less than one vote for any share on any
matter, every reference in Title 7, Chapter 78 of the Nevada Revised Statutes to
a majority or other proportion or number of shares shall refer to such a
majority or other proportion or number of votes entitled to be cast with respect
to such matter. In the election of directors, each record holder of stock
entitled to vote at such election shall have the right to vote in person or by
proxy the number of shares owned by him, for as many persons as there are
directors to be elected, and for whose election he has the right to vote unless
the Articles of Incorporation otherwise provide. Cumulative voting shall not be
allowed.
ARTICLE IV
Directors: Powers and Meetings
Section 4.1 - General Powers. The business and affairs of the
Corporation shall be managed by its Board of Directors, except as otherwise
provided in Title 7, Chapter 78 of the Nevada Revised Statutes or the Articles
of Incorporation.
Section 4.2 - Performance of Duties. A director of the Corporation
shall perform his duties as a director, including his duties as a member of any
committee of the Board upon which he may serve, in good faith, in a manner he
reasonably believes to be in the best interests of the Corporation, and with
such care as an ordinarily prudent person in a like position would use under
similar circumstances. In performing his duties, a director shall be entitled to
rely on information, opinions, reports, or statements, including financial
statements and other financial data, in each case prepared or presented by
persons and groups listed in paragraphs (a), (b), and (c) of this Section 4.2;
but he shall not be considered to be acting in good faith if he has knowledge
concerning the matter in question that would cause such reliance to be
unwarranted. A person who so performs his duties shall not have any liability by
reason of being or having been a director of the Corporation. Those persons and
groups upon whose information, opinions, reports, and statements a director is
entitled to rely are:
(a) One or more officers or employees of the Corporation
whom the director reasonably believes to be reliable and competent in
the matters presented;
(b) Counsel, public accountants, or other persons as to
matters which the director reasonably believes to be within such
person's professional or expert competence; or
(c) A committee of the Board upon which he does not
serve, duly designated in accordance with the provisions of the
Articles of incorporation or the Bylaws, as to matters within its
designated authority, which committee the director reasonably believes
to merit confidence.
Section 4.3 - Number; Tenure; Qualification; Chairman. The number of
directors which shall constitute the whole Board of Directors of the Corporation
shall be fixed from time to time by
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resolution of the Board of Directors or stockholders (any such resolution of the
Board of Directors or stockholders being subject to any later resolution of
either of them). The number of directors of the Corporation shall be not less
than three (3), nor more than ten (10) who need not be Shareholders of the
Corporation or residents of the State of Nevada and who shall be elected at the
annual meeting of Shareholders or some adjournment thereof, except that there
need be only as many directors as there are Shareholders in the event that the
outstanding shares are held of record by fewer than three (3) persons. Directors
shall hold office until the next succeeding annual meeting of Shareholders or
until their successors shall have been elected and shall qualify. No provision
of this section shall be restrictive upon the right of the Board of Directors to
fill vacancies or upon the right of Shareholders to remove Directors as is
hereinafter provided. The Board of Directors may designate one director as the
Chairman of the Board of Directors.
Section 4.4 - Resignation. Any Director of the Corporation may resign
at any time by giving written notice of his resignation to the Board of
Directors, the President, any Vice President or the Secretary of the
Corporation. Such resignation shall take effect at the date of receipt of such
notice or at any later time specified therein and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective. When one or more directors shall resign from the Board, effective at
a future date, a majority of the directors then in office, including those who
have so resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective.
Section 4.5 - Annual Meeting. The annual meeting of the Board of
Directors shall be held at the same place as, and immediately after, the annual
meeting of Shareholders, and no notice shall be required in connection
therewith. The annual meeting of the Board of Directors shall be for the purpose
of electing officers and the transaction of such other business as may come
before the meeting.
Section 4.6 - Special Meeting. Special meetings of the Board of
Directors may be called at any time by the President (or in his absence by a
Vice President), or by any director, and may be held within or outside the State
of Nevada at such time and place as the notice or waiver thereof may specify.
Notice of such meetings shall be mailed or telegraphed to the last known address
of each director at least five (5) days, or shall be given to a director in
person or by telephone at least forty-eight (48) hours prior to the date or time
fixed for the meeting. Special meetings of the Board of Directors may be held at
any time that all directors are present in person, and presence of any director
at a meeting shall constitute waiver of notice of such meeting, except as
otherwise provided by law. Unless specifically required by law, the Articles of
Incorporation or these Bylaws, neither the business to be transacted at, nor the
purpose of, any meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
Section 4.7 - Meetings by Telephone. Members of the Board of Directors
or any committee designated by the Board of Directors may participate in a
meeting of the Board or committee by means of telephone conference or similar
communications equipment by which all persons participating in the meeting can
hear each other at the same time. Such participation shall constitute presence
in person at the meeting.
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Section 4.8 - Quorum. A quorum at all meetings of the Board of
Directors shall consist of a majority of the number of directors then holding
office, but a smaller number may adjourn from time to time without further
notice, until a quorum be secured. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors, unless the act of a greater number is required by Title 7, Chapter
78 of the Nevada Revised Statutes, the Articles of Incorporation or these
Bylaws.
Section 4.9 - Manner of Acting. If a quorum is present, the affirmative
vote of a majority of the directors present at the meeting and entitled to vote
on that particular matter shall be the act of the Board, unless the vote of a
greater number is required by law or the Articles of Incorporation.
Section 4.10 - Presumption of Assent. A director of the Corporation who
is present at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the action taken
unless his dissent is entered in the minutes of the meeting or unless he files
his written dissent to such action with the person acting as the Secretary of
the meeting before the adjournment thereof or forwards such dissent by
registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
Section 4.11 - Action by Written Consent. Unless the Articles of
Incorporation or these By-laws specifically provide otherwise, any action
required or permitted to be taken at a meeting of the Board of Directors or any
committee designated by such board may be taken without a meeting if the action
is evidenced by one or more written consents describing the action taken, signed
by each director or committee member, and delivered to the Secretary for
inclusion in the minutes or for filing with the corporate records. Action taken
under this section is effective when all directors or committee members have
signed the consent, unless the consent specifies a different effective date.
Such consents shall have the same force and effect as a unanimous vote of the
directors or committee members and may be stated as such in any document.
Section 4.12 - Vacancies. Any vacancy occurring in the Board of
Directors may be filled by the affirmative vote of a majority of the remaining
directors though less than a quorum of the Board of Directors. A director
elected to fill a vacancy shall be elected for the unexpired term of his
predecessor in office, and shall hold such office until his successor is fully
elected and shall qualify. Any directorship to be filled by reason of an
increase in the number of directors shall be filled by the affirmative vote of a
majority of the directors then in office or by an election at an annual meeting,
or at a special meeting of Shareholders called for that purpose. A director
chosen to fill a position resulting from an increase in the number of Directors
shall hold office until the next annual meeting of Shareholders and until his
successor shall have been elected and shall qualify.
Section 4.13 - Compensation. Directors may receive such fees as may be
established by appropriate resolution of the Board of Directors for attendance
at meetings of the Board, and in addition thereto, shall receive reasonable
travel expenses, if any is required, for attendance at such meetings.
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Section 4.14 - Committees. The Board of Directors may by resolution
designate one or more directors to constitute one or more committees which each
shall have and may exercise all authority in the management of the Corporation
as the Board of Directors to the extent provided in such resolution for such
committee; but no such committee shall have the authority of the Board of
Directors in reference to amending the Articles of Incorporation, adopting a
plan of merger or consolidation, recommending to the Shareholders the sale,
lease, exchange, or other disposition of all or substantially all of the
property and assets of the Corporation otherwise than in the usual and regular
course of its business, recommending to the Shareholders a voluntary dissolution
of the Corporation or a revocation thereof, or amending the Bylaws of the
Corporation. The designation of such committees and the delegation thereto of
authority shall not operate to relieve the Board of Directors, or any member
thereof, of any responsibility imposed by law. Each member of the Board of
Directors, whether or not such director is a member of such committees, shall be
entitled to receive notice of each meeting of each committee of such Board of
Directors and each member of the Board of Directors shall be entitled to attend
each meeting of any such committee, whether or not such director is a member of
such committee.
Section 4.15 - Removal. The Shareholders may, at a meeting called for
the express purpose of removing directors, by the vote of Shareholders
representing not less than two-thirds of the voting power of the issued and
outstanding stock entitled to voting power, remove the entire Board of Directors
or any lesser number, with or without cause.
ARTICLE V
Officers
Section 5.1 - General. The elective officers of the Corporation shall
be a President, any number of Vice Presidents, a Secretary, any number of
Assistant Secretaries, a Treasurer and any number of Assistant Treasurers, who
shall be elected annually by the Board of Directors at its first meeting after
the annual meeting of Shareholders. Unless removed in accordance with the
procedures established by law and these Bylaws, the said officers shall serve
until the next succeeding annual meeting of the Board of Directors and until
their respective successors are elected and shall qualify. Any two or more
offices may be held by the same person at the same time. The officers of the
Corporation shall be natural persons of the age of eighteen (18) years or older.
Section 5.2 - Election and Term of Office. The Board may elect or
appoint such other officers and agents as it may deem advisable, who shall hold
office during the pleasure of the Board, and shall be paid such compensation as
may be directed by the Board.
Section 5.3 - Powers and Duties. The officers of the Corporation shall
respectively exercise and perform the respective powers, duties and functions as
are stated below, and as may be assigned to them by the Board of Directors, not
inconsistent with these Bylaws.
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(a) President. The President shall, subject to the
control of the Board of Directors, have general supervision, direction
and control of the business and officers of the Corporation. He shall
preside at all meetings of the Shareholders and of the Board of
Directors. The President or a Vice President, unless some other person
is specifically authorized by the Board of Directors, shall sign all
stock certificates, bonds, deeds, mortgages, leases and contracts of
the Corporation. The President shall perform all the duties commonly
incident to his office and such other duties as the Board of Directors
shall designate.
(b) Vice President. In the absence or disability of the
President, the Vice President or Vice Presidents, in order of their
rank as fixed by the Board of Directors, and if not ranked, the Vice
Presidents in the order designated by the Board of Directors shall
perform all the duties of the President, and when so acting, shall have
all the powers of, and be subject to all the restrictions on the
President. Each Vice President shall have such other powers and perform
such other duties as may from time to time be assigned to him by the
President.
(c) Secretary. The Secretary shall keep accurate minutes
of all meetings of the Shareholders and the Board of Directors. He
shall keep, or cause to be kept, a register of the Shareholders of the
Corporation and shall be responsible for the giving of notice of
meetings of the Shareholders and the Board of Directors. The Secretary
shall be custodian of the records and of the seal of the Corporation
and shall attest the affixing of the seal of the Corporation when so
authorized. The Secretary shall perform all duties commonly incident to
his office and such other duties as may from time to time be assigned
to him by the President.
(d) Assistant Secretary. An Assistant Secretary may, at
the request of the Secretary, or in the absence or disability of the
Secretary, perform all the duties of the Secretary. He shall perform
such other duties as may assigned to him by the President or by the
Secretary.
(e) Treasurer. The Treasurer, subject to the order of the
Board of Directors, shall have the care and custody of the money,
funds, valuable papers and documents of the Corporation. He shall keep
accurate books of accounts of the Corporation's transactions, which
shall be the property of the Corporation, and shall render financial
reports and statements of condition of the Corporation when so
requested by the Board of Directors or President. The Treasurer shall
perform all duties commonly incident to his office and such other
duties as may from time to time be assigned to him by the President.
(f) Assistant Treasurer. An Assistant Treasurer may, at
the request of the Treasurer, or in the absence or disability of the
Treasurer, perform all of the duties of the Treasurer. He shall perform
such other duties as may be assigned to him by the President or the
Treasurer.
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Section 5.4 - Salaries. All officers of the Corporation may receive
salaries or other compensation if so ordered and fixed by the Board of
Directors. The Board shall have the authority to fix salaries in advance for
stated periods or render the same retroactive as the Board may deem advisable.
Section 5.5 - Inability to Act. In the event of absence or inability of
any officer to act, the Board of Directors may delegate the power or duties of
such officer to any other officer, director or person whom it may select.
Section 5.6 - Removal. Any officer or agent may be removed by the Board
of Directors whenever, in its judgment, the best interest 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 shall not, of itself, create contract rights.
ARTICLE VI
Finance
Section 6.1 - Reserve Fund. The Board of Directors, in its uncontrolled
discretion, may set aside from time to time, out of the net profits or earned
surplus of the Corporation, such sum or sums as it deems expedient as a reserve
fund to meet contingencies, for equalizing dividends, for maintaining any
property of the Corporation, and for any other purposes.
Section 6.2 - Checks and Deposits. The monies of the Corporation shall
be deposited in the name of the Corporation in such bank or banks or trust
companies, as the Board of Directors shall designate, and may be drawn out only
on checks signed in the name of the Corporation by such person or persons as the
Board of Directors by appropriate resolution may direct. Notes and commercial
paper, when authorized by the Board, shall be signed in the name of the
Corporation by such officer or officers or agent or agents as shall thereto be
authorized from time to time.
Section 6.3 - Fiscal Year. The fiscal year of the Corporation shall end
on December 31 of each year or shall be as otherwise determined by resolution of
the Board of Directors.
ARTICLE VII
Bankruptcy/Insolvency
The Corporation shall not, without the affirmative vote of the whole
Board of Directors of the Corporation, institute any proceedings to adjudicate
the Corporation a bankrupt or insolvent, consent to the institution of
bankruptcy or insolvency proceedings against the Corporation, file a petition
seeking or consenting to reorganization or relief under any applicable federal
or state law relating to bankruptcy, consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the
Corporation or a substantial part of its property or
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admit its inability to pay its debts generally as they become due or authorize
any of the foregoing to be done or taken on behalf of the Corporation.
ARTICLE VIII
Waiver of Notice
With any notices required by law or under these Bylaws to be given to
any shareholder or director of the Corporation, a waiver thereof in writing
signed by the person entitled to such notice, whether before, at, or after the
time stated therein shall be the equivalent to the giving of such notice.
ARTICLE IX
Indemnification of Directors, Officers and Others
Section 9.1. To the full extent permitted by Title 7, Chapter 78 of the
Nevada Revised Statutes, Section 751, as the same may be amended from time to
time, the Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, or investigative
and whether formal or informal (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he conducted himself in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation and,
with respect to any criminal action or proceedings, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo
contendere or its equivalent, shall not of itself create a presumption that the
person did not act in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the Corporation and, with respect
to any criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
Section 9.2. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation as director, officer, employee or
agent of another corporation, partnership, joint venture, trust, or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interest of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation unless and
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only to the extent that the Court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
Section 9.3. To the extent that a director, officer, or employee or
agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Sections 9.1 and 9.2 of
this Article IX, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 9.4. Any indemnification under Section 9.1 and 9.2 of this
Article IX (unless ordered by a Court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
office, director and employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Section 9.1 and 9.2 of
this Article IX. Such determination shall be made (a) by the Board of Directors
by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (b) if a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (c) by the
affirmative vote of the holders of a majority of the shares entitled to vote and
represented at a meeting called for such purpose.
Section 9.5. Expenses (including attorneys fees) incurred in defending
a civil or criminal action, suit or proceeding may be paid by the Corporation as
they are incurred and in advance of the final disposition of such action, suit
or proceeding as authorized by the Board of Directors as provided in Section 9.4
of this Article IX upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount if it shall ultimately
be determined by a final order of a court of competent jurisdiction that he or
she is not entitled to be indemnified by the Corporation as authorized in this
Article IX.
Section 9.6. The Board of Directors may exercise the Corporation's
power to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability
hereunder or otherwise.
Section 9.7. The indemnification provided by this Article IX shall not
be deemed exclusive of any other rights to which those seeking indemnification
may be entitled under the Articles of Incorporation, these Bylaws, agreement,
vote or shareholders or disinterested directors, Title 7, Chapter 78 of the
Nevada Revised Statutes, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer, employee
or agent and representatives of such person.
Section 9.8. The Corporation shall have the power to indemnify current
or former directors, officers, employees and agents to the fullest extent
provided by the laws of the State of Nevada.
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ARTICLE X
Amendments
These Bylaws may be altered, amended or repealed at the annual meeting
of the Board of Directors or at any special meeting of the Board called for that
purpose.
ARTICLE XI
Miscellaneous
Section 11.1 - Loans. The Corporation may loan money to, guarantee the
obligations of and otherwise assist directors, officers and employees of the
Corporation, or directors of another corporation of which the Corporation owns a
majority of the voting stock, only upon compliance with the requirements of
Title 7, Chapter 78 of the Nevada Revised Statutes.
No loans shall be contracted on behalf of the Corporation and no
evidence of indebtedness shall be issued in its name unless authorized by
resolution of the Board of Directors. Such activity may be general or confined
to specific instances.
Section 11.2 - 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. Such
authority may be general or confined to specific instances.
Section 11.3 - Emergency Bylaws. Subject to repeal or change by action
of the shareholders, the Board of Directors may adopt emergency Bylaws in
accordance with and pursuant to the provisions of Title 7, Chapter 78 of the
Nevada Revised Statutes.
/s/ David K. Moskowitz
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David K. Moskowitz
Secretary
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