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EXHIBIT 3
[SEAL]
THE STATE OF TEXAS
SECRETARY OF STATE
NOV. 20, 1998
STEVEN HOLMERS (HOGE EVANS HOLMES CARTER+)
4311 OAKLAWN, SUITE 600
DALLAS, TX 75219
RE:
CYBERGUIDE ONLINE, INC.
CHARTER NUMBER 01513094-00
IT HAS BEEN OUR PLEASURE TO APPROVE AND PLACE ON RECORD THE ARTICLES OF
INCORPORATION THAT CREATED YOUR CORPORATION. WE EXTEND OUR BEST WISHES FOR
SUCCESS IN YOUR NEW VENTURE.
AS A CORPORATION, YOU ARE SUBJECT TO STATE TAX LAWS. SOME NON-PROFIT
CORPORATIONS ARE EXEMPT FROM THE PAYMENT OF FRANCHISE TAXES AND MAY ALSO BE
EXEMPT FROM THE PAYMENT OF SALES AND USE TAX ON THE PURCHASE OF TAXABLE ITEMS.
IF YOU FEEL THAT UNDER THE LAW YOUR CORPORATION IS ENTITLED TO BE EXEMPT YOU
MUST APPLY TO THE COMPTROLLER OF PUBLIC ACCOUNTS FOR THE EXEMPTION. THE
SECRETARY OF STATE CANNOT MAKE SUCH DETERMINATION FOR YOUR CORPORATION.
IF WE CAN BE OF FURTHER SERVICE AT ANY TIME, PLEASE LET US KNOW.
[SEAL] VERY TRULY YOURS,
/s/ ALBERTO R. GONZALES
---------------------------------------
Alberto R. Gonzales, Secretary of State
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[SEAL]
THE STATE OF TEXAS
SECRETARY OF STATE
CERTIFICATE OF INCORPORATION
OF
CYBERGUIDE ONLINE, INC.
CHARTER NUMBER 01513094
THE UNDERSIGNED, AS SECRETARY OF STATE OF THE STATE OF TEXAS, HEREBY
CERTIFIES THAT THE ATTACHED ARTICLES OF INCORPORATION FOR THE ABOVE NAMED
CORPORATION HAVE BEEN RECEIVED IN THIS OFFICE AND ARE FOUND TO CONFORM TO LAW.
ACCORDINGLY, THE UNDERSIGNED, AS SECRETARY OF STATE, AND BY VIRTUE OF THE
AUTHORITY VESTED IN THE SECRETARY BY LAW, HEREBY ISSUES THIS CERTIFICATE OF
INCORPORATION.
ISSUANCE OF THIS CERTIFICATE OF INCORPORATION DOES NOT AUTHORIZE THE USE
OF A CORPORATE NAME IN THIS STATE IN VIOLATION OF THE RIGHTS OF ANOTHER UNDER
THE FEDERAL TRADEMARK ACT OF 1946, THE TEXAS TRADEMARK LAW, THE ASSUMED
BUSINESS OR PROFESSIONAL NAME ACT OR THE COMMON LAW.
DATED NOV. 19, 1998
EFFECTIVE NOV. 19, 1998
[SEAL]
ALBERTO R. GONZALES
--------------------------------------
Alberto R. Gonzales, Secretary of State
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FILED
ARTICLES OF INCORPORATION in the Office of the
Secretary of State of Texas
OF NOV 19 1998
CYBERGUIDE ONLINE, INC. Corporations Section
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I, the undersigned natural person of age twenty-one (21) years or
more, a citizen of the State of Texas, acting as an Incorporator of a
corporation under the Texas Business Corporation Act, do hereby adopt the
following Articles of Incorporation for said corporation:
ARTICLE ONE
The name of the corporation is Cyberguide Online, Inc..
ARTICLE TWO
The period of its duration is perpetual.
ARTICLE THREE
The purpose for which the Corporation is organized is to transact any
or all lawful business for which a corporation may be incorporated under the
Texas Business Corporation Act, as now existing or hereafter amended.
ARTICLE FOUR
1. General. The Corporation shall have authority to issue two
classes of shares, to be designated as "Preferred" and "Common". The total
number of shares which the Corporation is authorized to issue is 110,000,000
shares. The number of Common shares authorized is 100,000,000 and the par value
of each share is $0.001 per share. The Common shares shall have identical
rights and privileges in every respect. The number of Preferred shares
authorized is 10,000,000 and the par value of each such share is $0.01 per
share.
2. Preferred Stock. The Board of Directors is vested with the
authority to adopt a resolution or resolutions providing for the issue of
authorized but unissued shares of Preferred Stock, which shares may be issued
from time to time in one or more series and in such amounts as may be
determined by the Board of Directors in such resolution or resolutions. The
characteristics of the Preferred Stock, including the ownership powers, voting
powers,
ARTICLES OF INCORPORATION - Page 1
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designations, preferences, and relative, participating, optional or other
rights, if any, of each series of Preferred Stock and the qualifications,
limitations or restrictions, if any, of such preferences and/or rights
(collectively the "Series Terms"), shall be such as are stated and expressed in
a resolution or resolutions providing for the creation or revision of such
Series Terms (a "Preferred Stock Series Resolution") adopted by the Board of
Directors or a committee of the Board of Directors to which such responsibility
is specifically and lawfully delegated. The powers of the Board with respect to
the Series Terms of a particular series (any of which powers may, by a
resolution of the Board of Directors, be specifically delegated to one or more
of its committees, except as prohibited by law) shall include, but not be
limited to, the establishment of the following relative rights and preferences:
A. The rate of dividends;
B. The price at and the terms and conditions for which shares
may be redeemed;
C. The amount payable upon shares in event of involuntary
liquidation;
D. The amount payable upon shares in event of voluntary
liquidation;
E. Sinking fund provisions (if any) for the redemption or
purchase of shares;
F. The terms and conditions on which shares may be converted
if the shares of any Series are issued with the privilege
of conversion; and
G. Voting rights, including the number of votes per shares,
the matter on which shares can vote, and the contingencies
which make the voting rights effective.
3. Preferences, Limitations and Relative Rights.
A. General. All shares of Common Stock shall have identical
rights with each other. Except as provided in this Article
Four or in Preferred Stock Series Resolutions, all shares
of Preferred Stock shall have preferences, limitations and
relative rights identical with each other. Except as
expressly provided in the Preferred Stock Series
Resolutions, shares of Preferred Stock shall have only the
preferences and relative rights expressly stated in this
Article.
B. Dividends.
(i) The Preferred Stock at the time outstanding shall
be entitled to receive, when, as, and if declared
by the Board of Directors, out of any funds
legally available therefor, dividends at the rate
fixed by the Board of Directors.
ARTICLES OF INCORPORATION - Page 2
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(ii) No dividends shall be declared or paid on Common
Stock unless full dividends on outstanding
Preferred Stock for all past dividend periods
and for the current dividend periods shall have
been declared and paid.
C. Liquidation Preference. In the event of dissolution,
liquidation, or winding up of the Corporation (whether
voluntary or involuntary), after payment or provision for
payment of debts but before any distribution to the
holders of the Common Stock, as provided under Texas law,
the holders of each Series of Preferred Stock then
outstanding shall be entitled to receive the amount fixed
by the Board of Directors, plus a sum equal to all
cumulated, but unpaid dividends (if any) to the date fixed
for distribution. All remaining assets shall be
distributed pro rata among the holders of Common Stock.
D. Redemption.
(1) All or part of any one or more Series of Preferred
Stock may be redeemed at any time or times at the
option of the Corporation by a resolution of the
Board of Directors, in accordance with the terms
and provisions of this Article Four and those
fixed by the Board of Directors. The Corporation
may redeem shares of any one or more series
without redeeming shares of other series, as
determined by the Board of Directors. If less than
all the shares of any series are to be redeemed,
the shares of the series to be redeemed shall be
selected ratably whether by lot or by any other
equitable method determined by the Board of
Directors.
(2) Redeemed shares shall be paid for in amounts and
manners as fixed by the Board of Directors.
(3) Shares of Preferred Stock which are redeemed shall
be canceled and shall be restored to the status of
authorized but unissued shares.
E. Purchase. Except as provided in this Article, nothing
shall limit the right of the Corporation to purchase any
of its outstanding shares in accordance with law, by
public or private transaction.
F. Voting. Except as fixed by the Board of Directors and
except as otherwise expressly provided by law, all voting
powers shall be in Common Stock and none in the Preferred
Stock. Where Preferred Stock as a Class has voting power,
all Series of Preferred Stock shall be a single class.
ARTICLES OF INCORPORATION - Page 3
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ARTICLE FIVE
The corporation will not commence business until it has received for
the issuance of its shares consideration of the value of One Thousand Dollars
($1,000.00), consisting of money, labor done or property actually received.
ARTICLE SIX
The street address of the corporation's initial registered office is
4300 Horizon N. Parkway, Suite 915, Dallas, Texas 75287. The name of the
initial Registered Agent at that address is James B. Tucker.
ARTICLE SEVEN
The number of Directors constituting the initial Board of Directors is
three (3) and the names and addresses of the persons who are to serve as
Directors until the first annual meeting of the Shareholders, or until their
successors are elected and qualified are:
Jim W. Tucker
4300 Horizon N. Parkway
Suite 915
Dallas, Texas 75287
James B. Tucker
4300 Horizon N. Parkway
Suite 915
Dallas, Texas 75287
Bob Ringle
4300 Horizon N. Parkway
Suite 915
Dallas, Texas 75287
ARTICLES OF INCORPORATION - Page 4
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ARTICLE EIGHT
The name and address of the Incorporator is:
Steven B. Holmes
Hoge, Evans, Holmes
Carter & Ledbetter, PLLC
4311 Oaklawn
Suite 600
Dallas, Texas 75219
ARTICLE NINE
Cumulative voting by the Shareholders of the corporation at any
election for Directors is expressly prohibited. The Shareholders entitled to
vote for Directors in such election shall be entitled to cast one (1) vote for
each Director for each share held and no more.
ARTICLE TEN
No holder of any stock of the corporation shall be entitled as a
matter of right to purchase or subscribe for any part of any stock of the
corporation authorized by these Articles or of any additional stock of any
class to be issued by reason of any increase of the authorized stock of the
corporation, or of any bonds, certificates of indebtedness, debentures,
warrants, options or other securities convertible into any class of stock of
the corporation, but any stock authorized by these Articles or any such
additional authorized issue of any stock or securities convertible into any
stock may be issued and disposed of by the Board of Directors to such persons,
firms, corporations or associations for such consideration and upon such terms
and in such manner as the Board of Directors may in its discretion determine
without offering any part thereof on the same terms or on any terms to the
Shareholders then of record or to any class of Shareholders, provided only that
such issuance may not be inconsistent with any provision of law or with any of
the provisions of this Article.
ARTICLE ELEVEN
The corporation shall indemnify as set forth herein, to the extent
allowed by Article 2.02-1 of the Texas Business Corporation Act, any person who
is or was a Director, Officer, agent or employee of the corporation, and any
person who serves or served at the corporation's request as a Director,
Officer, agent, employee, partner or trustee of another corporation,
partnership, joint venture, trust or other enterprise.
ARTICLES OF INCORPORATION - Page 5
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(A) Persons. The corporation shall indemnify, to the extent
provided in Paragraph (B), (D), or (F):
(1) any person who is or was a Director, Officer, agent or
employee of the corporation, and
(2) any person who serves or served at the corporation's
request as a Director, Officer, agent, employee, partner or
trustee of another corporation or of a partnership, joint
venture, trust or other enterprise.
(B) Extent - Derivative Suits. In case of a suit by or in the
right of the corporation against a person named in Paragraph
(A) by reason of his holding a position named in Paragraph
(A), the corporation shall indemnify him, if he satisfies the
standard in Paragraph (C), for expenses (including attorney's
fees but excluding amounts paid in settlement) actually and
reasonably incurred by him in connection with the defense or
settlement of the suit.
(C) Standard - Derivative Suit. In case of a suit by or in the
right of the corporation, a person named in Paragraph (A)
shall be indemnified only if:
(1) he is successful on the merits or otherwise, or
(2) he acted in good faith in the transaction which is the
subject of the suit, and in a manner he reasonably believed
to be in, or not opposed to, the best interests of the
corporation. However, he shall not be indemnified in respect
of any claim, issue or matter as to which he has been
adjudged liable for negligence or misconduct in the
performance of his duty to the corporation unless (and only
to the extent that) the court in which the suit is brought
shall determine, upon application, that despite the
adjudication but in view of all the circumstances, he is
fairly and reasonably entitled to indemnity for such expenses
as the court shall deem proper.
(D) Extent - Nonderivative Suits. In case of a suit, action, or
proceeding (whether civil, criminal, administrative or
investigative), other than a suit by or in the right of the
corporation, together hereafter referred to as "Nonderivative
suit", against a person named in Paragraph (A) by reason of
his holding a position named in Paragraph (A), the
corporation shall indemnify him if he satisfies the standard
in Paragraph (E), for amounts actually and reasonably
incurred by him in connection with the defense or settlement
of the Nonderivative suit as:
(1) expenses (including attorney's fees);
(2) amounts paid in settlement;
(3) judgments; and
ARTICLES OF INCORPORATION - Page 6
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(4) fines.
(E) Standard - Nonderivative Suits. In case of a Nonderivative
suit, a person named in Paragraph
(A) shall be indemnified only if:
(1) he is successful on the merits or otherwise; or
(2) he acted in good faith in the transaction which is the
subject of the Nonderivative suit, and in a manner he
reasonably believed to be in, and not opposed, to, the best
interests of the corporation and, with respect to any
criminal action or proceeding, he had no reason to believe
his conduct was unlawful. The termination of a Nonderivative
suit by judgment, order, settlement, conviction or upon plea
of nolo contendere or its equivalent shall not, of itself,
create a presumption that the person failed to satisfy the
standard of this Paragraph (E) (2).
(F) Determination That Standard Has Been Met. A determination
that the standard of Paragraphs (C) or (E) has been satisfied
may be made by a court, or except as stated in Paragraph
(C)(2) (second sentence), the determination may be made by:
(1) a majority of the Directors of the corporation (whether
or not a quorum) who were not parties to the action, suit or
proceeding; or
(2) independent legal counsel (appointed by a majority of the
Directors of the corporation, whether or not a quorum, or
elected by the Shareholders of the corporation) in a written
opinion; or
(3) the shareholders of the corporation.
(G) Proration. Anyone making a determination under Paragraph (F)
may determine that a person has met the standard as to some
matters but not as to others, and may reasonably prorate
amounts to be indemnified.
(H) Advance Payment. The corporation may pay in advance any
expenses (including attorney's fees) which may become subject
to indemnification under Paragraphs (A) - (G) if:
(1) the Board of Directors authorizes the specific payment;
and
(2) the person receiving the payment undertakes in writing to
repay the corporation, unless it is ultimately determined
that he is entitled to indemnification by the corporation
under Paragraphs (A) - (G).
ARTICLES OF INCORPORATION - Page 7
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(I) Nonexclusive. The indemnification provided in Paragraphs (A)
- (G) shall not be exclusive of any other rights to which a
person may be entitled by law, by-law, agreement, vote of
Shareholders or disinterested Directors, or otherwise.
(J) Continuation. The indemnification and advance payment
provided in Paragraphs (A) - (H) shall continue as to a
person who has ceased to hold a position named in Paragraph
(A) and shall inure to his heirs, executors and
administrators.
(K) Insurance. The corporation may purchase and maintain
insurance on behalf of any person who holds or who has held
any position named in Paragraph (A), against any liability
incurred by him in any such position, or arising out of his
status as such, whether or not the corporation would have
power to indemnify him against such liability under
Paragraphs (A) - (H).
(L) Reports. Indemnification payments, advance payments and
insurance purchases and payments made under Paragraphs (A) -
(K) shall be reported in writing to the Shareholders of the
corporation with the next notice of annual meeting, or within
six (6) months, whichever is sooner.
(M) Severability. All of the provisions of this Article Eleven
are separate from each other, and to the extent that a
particular provision is held by a court of competent
jurisdiction to be invalid for any reason, then such holding
shall not affect the enforceability and binding effect of the
other provisions herein not held to be invalid.
ARTICLE TWELVE
No contract or other transaction between the Corporation and any other
person (as used herein the term "Person" means an individual, firm, trust,
partnership, association, corporation, or other entity) shall be affected or
invalidated by the fact that any director of the Corporation is interested in,
or is a member, director, or an officer of, such other person, and any director
may be a party to or may be interested in any contract or transaction of the
Corporation or in which the Corporation is interested; and no contract, act, or
transaction of the Corporation with any person shall be affected or invalidated
by the fact that any director of the Corporation is a party to, or interested
in, such contract, act, or transaction, or in any way connected with such
person. Each and every person who may become a director of the Corporation is
hereby relieved from any liability that might otherwise exist from contracting
with the Corporation for the benefit of himself or any person in which he may
in any way be interested; provided that the fact of such interest shall have
been disclosed to, or shall be known by, the other directors or the
shareholders of the Corporation, as the case may be, acting upon or with
reference to such act, contract, or transaction, even though the presence at a
meeting or vote or votes of such interested director might have been necessary
to obligate the Corporation upon such act, contract, or transaction.
ARTICLES OF INCORPORATION - Page 8
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ARTICLE THIRTEEN
The Corporation shall have the authority to purchase, directly or
indirectly, its own shares to the extent of the aggregate of the unrestricted
capital surplus available therefor and unrestricted reduction surplus available
therefor, without submitting such purchase to a vote of the shareholders of the
Corporation.
ARTICLE FOURTEEN
Any action required by the Texas Business Corporation Act to be taken
at any annual or special meeting of Shareholders, or any action which may be
taken at any annual or special meeting of Shareholders, may be taken without a
meeting, without prior notice, and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be signed by the holder or
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 voted.
IN WITNESS WHEREOF, I have hereunto set my hand on November 18, 1998.
/s/ STEVEN B. HOLMES
---------------------------------
STEVEN B. HOLMES,
INCORPORATOR
ARTICLES OF INCORPORATION - Page 9
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BYLAWS
OF
CYBERGUIDE ONLINE, INC.
ARTICLE ONE - OFFICES
SECTION ONE. REGISTERED OFFICE. The Registered Office of the
Corporation is located at 4300 Horizon N. Parkway, Suite 915, Dallas, Texas
75287.
SECTION TWO. ADDITIONAL OFFICE. The Corporation may also have offices
at such other places, within or without the State of Texas, where the
Corporation is qualified to do business, as the Board of Directors may from
time to time designate and as the business of the Corporation may require.
ARTICLE TWO - SHAREHOLDER'S MEETINGS
SECTION ONE. PLACE OF MEETINGS. Meetings of the Shareholders shall be
held at any place, either within or without the State of Texas, designated by
the Board of Directors pursuant to authority hereinafter granted to the Board
or by the written consent of all persons entitled to vote thereat. In the
absence of any such designation, Shareholder's meetings shall be held at the
Registered Office of the Corporation.
SECTION TWO. ANNUAL MEETING. The annual meeting of the Shareholders
shall be held at a date and time to be set by resolution of the Board of
Directors. If no resolution is made setting the date for the annual meeting of
the Shareholders, such meeting shall be held on the annual anniversary of the
date on which the Corporation's Articles of Incorporation were issued. At such
meetings Directors shall be elected, reports of the affairs of the Corporation
shall be considered and any other business may be transacted which is within
the powers of the Shareholders. The date and time of the Annual Meeting of
Shareholders may be changed by appropriate resolutions of the Board of
Directors, to a time within sixty (60) days before or following the date stated
herein.
SECTION THREE. NOTICE OF MEETING. Notice of all meetings of the
Shareholders stating the place, day and hour of the meeting, and in case of a
special meeting the purpose or purposes for which the meeting is called, shall
be given in writing to each Shareholder entitled to vote at the meeting at
least ten (10) but not more than fifty (50) days before the date of the meeting
either personally or by mail or other means of written communication, addressed
to the Shareholder at the address appearing on the books of the Corporation or
given by the Shareholder to the Corporation for the purpose of notice. If
mailed, the notice shall be deemed to be delivered when deposited in the United
States mail, with postage prepaid, properly addressed to the Shareholder.
Notice of adjourned meetings is not necessary unless the meeting is adjourned
for thirty (30) days or more, in which case notice of the adjourned meeting
shall be given as in the case of any special meeting. Any notice required by
law or by these Bylaws may be waived by the person entitled to
BYLAWS OF CYBERGUIDE ONLINE, INC. - Page 1
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the notice by the execution of a written waiver of such notice, which waiver
may be signed before or after the time stated in the notice.
SECTION FOUR. SPECIAL MEETINGS. Special meetings of the Shareholders
may be called by the President, the Board of Directors or by the holder or
holders of at least one-tenth (1/10) of all the shares entitled to vote at the
meeting. No question may be voted upon at a special meeting of the Shareholders
unless the notice of said meeting states that one of the purposes of the
meeting will be to act upon the question or unless the meeting is attended by
all of the Shareholders entitled to vote upon the question and all the
Shareholders vote that the question may then be voted upon at that meeting.
SECTION FIVE. QUORUM AND MANNER OF ACTION. The holders of a majority
of shares entitled to vote, represented in person or by proxy, shall constitute
a quorum at a meeting of Shareholders. If less than a majority of the
outstanding shares are represented at a meeting, a majority of the shares so
represented may adjourn the meeting from time to time without notice other than
announcement at the meeting that the meeting shall be adjourned until a quorum
shall be present. At a reconvened meeting at which a quorum is present or
represented, any business may be transacted which might have been transacted at
the meeting as originally noticed. When a quorum is present at any meeting, the
vote of the holders of a majority of the shares having voting power, present in
person or represented by proxy, shall decide any question brought before the
meeting, unless the question is one upon which, by express provision of the
statues, the Articles of Incorporation or these Bylaws, a different vote is
required, in which case the express provision shall govern and control the vote
required for decision upon the question.
SECTION SIX. VOTING OF COMMON SHARES. Each outstanding share of common
stock shall be entitled to one (1) vote on each matter submitted to a vote at a
meeting of Shareholders.
SECTION SEVEN. ELIGIBLE SHAREHOLDERS. For the purpose of determining
Shareholders entitled to notice of and to vote at any meeting of Shareholders
or at any adjournment thereof, for the purpose of determining Shareholders
entitled to receive payment of any dividend or for the purpose of determining
the shareholders for any other proper purpose, the Board of Directors of the
corporation may provide that the share transfer books shall be closed for a
stated period, not to exceed in any case fifty (50) days. If the share transfer
books shall be closed for the purpose of determining Shareholders entitled to
notice of or to vote at a meeting of Shareholders, the books shall be closed
for at least ten (10) days immediately preceding the meeting. In lieu of
closing the share transfer books, the Board of Directors may fix in advance a
date as the record date for such determinations of Shareholders, with the date
in any case to be not more than fifty (50) days and in case of a meeting of
Shareholders, not less than ten (10) days prior to the date on which the
particular action requiring the determination of Shareholders is to be taken.
If the share transfer books are not closed and no record date is fixed for the
determination of Shareholders entitled to notice of and to vote at a meeting of
Shareholders or shareholders entitled to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring the dividend is adopted, as the
case may be, shall be the record date for the determination of Shareholders.
When a determination of shareholders entitled to vote at any meeting of
Shareholders has been made as provided in this section, the determination shall
apply to any adjournment thereof.
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SECTION EIGHT. VOTING LIST. The Officer or agent having charge of the
Corporation's share transfer books shall make, at least ten (10) days before
each meeting of Shareholders, a complete list of the Shareholders entitled to
vote at the meeting or at any adjournment thereof. The list shall be arranged
in alphabetical order with the address of each Shareholder and the number of
shares owned by each Shareholder. The list, for a period of ten (10) days prior
to the meeting, shall be kept on file at the Registered Office of the
Corporation and shall be subject to the inspection by any Shareholder at any
time during usual and ordinary business hours. The list shall also be produced
and kept open at the time and place of the meeting and shall be subject to the
inspection of any Shareholder during the whole time of the meeting. The
original share transfer books shall be prima facie evidence as to the
Shareholders who are entitled to examine the list and transfer books and to
vote at any meeting of Shareholders.
SECTION NINE. PROXIES. At any meeting of Shareholders, a Shareholder
may vote in person or by proxy executed in writing by the Shareholder or by his
duly authorized attorney-in-fact. The proxy shall be filed with the Secretary
of the Corporation before or at the time of the meeting. No proxy shall be
valid after eleven (11) months from the date of its execution, unless otherwise
specifically provided in the proxy. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and unless otherwise made
irrevocable by law.
SECTION TEN. ACTION WITHOUT MEETING. Any action required by the Texas
Business Corporation Act to be taken at any annual or special meeting of
Shareholders, or any action which may be taken at any annual or special meeting
of Shareholders, may be taken without a meeting, without prior notice, and
without a vote, if a consent or consents in writing, setting forth the action
so taken, shall be signed by the holder or 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 voted.
SECTION ELEVEN. CONSENT OF ABSENTEES. No defect in the calling or
noticing of a Shareholder's meeting will affect the validity of any action at
the meeting if a quorum was present and if each Shareholder not present in
person or by proxy signs a written waiver of notice, consent to the holding of
the meeting or approval of the Minutes, either before or after the meeting and
such waivers, consents or approvals are filed with the corporate records or
made a part of the Minutes of the meeting.
SECTION TWELVE. ELECTION INSPECTOR. In advance of any meeting of
Shareholders, the Board of Directors may appoint any person, other than a
nominee for office, as inspector of election to act at such meeting or any
adjournment thereof. If an inspector of election is not so appointed, the
chairman of any such meeting may, and on the request of any Shareholder or his
proxy, shall, appoint an inspector of election at the meeting. In case the
person appointed as inspector fails to appear or fails or refuses to act, the
vacancy may be filled by appointment by the Board of Directors in advance of
the meeting or at the meeting by the person acting as chairman. The inspector
of election shall determine the number of shares outstanding and the voting
power of each, the shares represented at the meeting, the existence of a
quorum, the authenticity, validity, and effect of proxies, receive notes,
ballots or consents, hear and determine all challenges and questions in any way
arising in connection with the right to vote, count and tabulate all votes or
consents, determine the result, and do such acts as may be proper to conduct
the election or vote with fairness to all Shareholders. The inspector of
election shall perform his
BYLAWS OF CYBERGUIDE ONLINE, INC. - Page 3
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duties impartially, in good faith, to the best of his ability and as
expeditiously as is practical. On request of the chairman of the meeting or of
any Shareholder or his proxy, the inspector shall make a report in writing of
any challenge or question of matter determined by him and execute a certificate
of any fact found by him. Any report or certificate made by him is prima facie
evidence of the facts stated therein.
SECTION THIRTEEN. CONDUCT OF MEETING. At every meeting of the
Shareholders, the President, or in his absence, the Vice President designated
by the Board of Directors, shall act as chairman. The Secretary of the
Corporation, or in his absence, any person appointed by the presiding officer,
shall act as Secretary of all meetings of the Shareholders.
SECTION FOURTEEN. CUMULATIVE VOTING. Cumulative voting by the
Shareholders of the Corporation at any election for Directors is expressly
prohibited. The Shareholders entitled to vote for Directors in any election
shall be entitled to cast one (1) vote and no more per share for each Director
to be elected.
SECTION FIFTEEN. VOTING OF SHARES OF CERTAIN HOLDERS.
(a) Shares standing in the name of another corporation may be
voted by such officer, agent or proxy as the Bylaws of such
corporation may authorize, or in the absence of such
authorization, as the Board of Directors of such corporation
may determine.
(b) Shares held by an administrator, executor, guardian or
conservator may be voted by him so long as such shares are in
the possession and forming a part of the estate being served
by him, either in person or by proxy, without the necessity
of a transfer of the shares into his name. Shares standing in
the name of a trustee may be voted by him, either in person
or by proxy, but no trustee shall be entitled to vote shares
held by him, either in person or by proxy, without a transfer
of the shares into his name as trustee.
(c) Shares standing in the name of a receiver may be voted by the
receiver, and shares held by or under the control of a
receiver may be voted by him without the transfer thereof
into his name if authority to do so is contained in an
appropriate order of the court by which he was appointed.
(d) A shareholder whose shares are pledged shall be entitled to
vote such shares until they have been transferred into the
name of the pledgee, and thereafter the pledgee shall be
entitled to vote the transferred shares.
(e) Treasury shares, shares of its own stock owned by another
corporation the majority of the voting stock of which is
owned or controlled by this Corporation, and shares of its
own stock held by this corporation in a fiduciary capacity
shall not be voted, directly or indirectly, at any meeting,
and shall not be counted in determining the total number of
outstanding shares at any given time.
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ARTICLE THREE - DIRECTORS
SECTION ONE. POWERS. The business and affairs of the Corporation shall
be managed by the Board of Directors which shall exercise all the powers of the
Corporation and do all lawful acts and things as are not by statute, by the
Articles of Incorporation or by these Bylaws directed or required to be
exercised or done or approved by the Shareholders.
SECTION TWO. NUMBER AND QUALIFICATION. The Board of Directors shall
consist of at least one and no more than nine (9) Directors, who need not be a
Shareholder or resident of the State of Texas. The actual number of Directors
chosen within these limits shall be established by the Board of Directors by
properly approved resolution. The upper limit to the number of Directors may be
increased or decreased from time to time by amendment to these Bylaws;
provided, however, that no decrease in the number of Directors shall have the
effect of shortening the term of any incumbent Director.
SECTION THREE. TERM OF OFFICE. The Directors named in the Articles of
Incorporation shall hold office until the first annual meeting of Shareholders
and until their successors are elected and qualified, either at an annual or a
special meeting of Shareholders. Directors other than those named in the
Articles of Incorporation, shall hold office until the next annual meeting and
until their successors are elected and qualified.
SECTION FOUR. VACANCIES. Vacancies in the Board of Directors shall
exist in the case of the happening of any of the following events; (a) the
death, resignation or removal of any Director; (b) the authorized number of
Directors is increased; or (c) at any annual, regular or special meeting of
Shareholders at which any Director is elected, the Shareholders fail to elect
the full authorized number of Directors to be voted for at that meeting. In
addition, the Board or Directors may declare vacant the office of a Director in
either of the following cases: (a) if he is adjudged incompetent by an order of
Court or convicted of a felony; or (b) if within thirty (30) days after notice
of his election, he does not accept the office either in writing or by
attending a meeting of the Board of Directors. Vacancies may be filled by the
unanimous vote of the remaining Directors, though less than a quorum or by a
sole remaining Director. Each Director so elected shall hold office until his
successor is elected at an annual, regular or special meeting of the
Shareholders. The Shareholders may elect a Director at any time to fill any
vacancy not filled by the Directors. If the Board of Directors accepts the
resignation of a Director tendered to take effect at a future time, the Board
or the Shareholders may elect a successor to take office when the resignation
becomes effective. A reduction of the authorized number of Directors shall not
remove any Director prior to the expiration of his term of office.
SECTION FIVE. REMOVAL. The entire Board of Directors or any individual
Director may be removed from office, either with or without cause, by a vote of
Shareholders holding a majority of the outstanding shares entitled to vote at
an election of Directors. If any or all Directors are so removed, new Directors
may be elected at the same meeting.
SECTION SIX. PLACE OF MEETINGS. All meetings of the Board of Directors
shall be held at any place, within or without the State of Texas, which has
been designated from time to time by resolution of the Board or by written
consent of all members of the Board. Any regular or
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17
special meeting is valid, wherever held, if held on written consent of all
members of the Board given either before or after the meeting and filed with
the Secretary of the Corporation.
SECTION SEVEN. ANNUAL MEETINGS. Annual meetings of the Board of
Directors shall be held, without call or notices, immediately following each
annual meeting of the Shareholders of the Corporation.
SECTION EIGHT. SPECIAL MEETINGS. Special meetings of the Board of
Directors of the Corporation shall be called by the President, or, if he is
absent or is unable or refuses to act, by any Vice President or by any
Director.
SECTION NINE. NOTICE OF SPECIAL MEETING. Written notice of the time,
place and purpose of special meetings of the Board of Directors shall be
delivered personally to each Director or sent to each Director by mail or by
other form of written communication, at least seven (7) days before the
meeting. If the address of a Director is not shown on the records and is not
readily ascertainable, notice shall be addressed to him at the city or place in
which meetings of the Directors are regularly held. Notice of the time and
place of holding an adjourned meeting of a meeting need not be given to absent
Directors if the time and place are fixed at the meeting adjourned.
SECTION TEN. QUORUM AND MANNER OF ACTION. At all meetings of the Board
of Directors, the presence of a majority of the Directors shall be necessary
and sufficient to constitute a quorum for the transaction of business and the
act of a majority of Directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors, except as otherwise
specifically provided by statute, by the Articles of Incorporation, or by these
Bylaws. If a quorum shall not be present at any meeting of Directors, the
Directors present may adjourn the meeting from time to time, without notice
other than announcement at the meeting that the meeting shall be adjourned,
until a quorum shall be present. At a reconvened meeting at which a quorum is
present any business may be transacted which might have been transacted at the
meeting as originally noticed. Each Director who is present at a meeting will
be deemed to have assented to any action taken at such meeting unless his
dissent to the action is entered in the Minutes of the meeting or unless he
shall file his written dissent thereto with the Secretary of the meeting or
shall forward such dissent by registered mail to the Secretary of the
Corporation immediately after such meeting.
SECTION ELEVEN. ACTION WITHOUT MEETING. Any action required or
permitted to be taken by the Board of Directors or any Committee of Directors
under any provision of the Texas Business Corporation Act may be taken without
a meeting, if all members of the Board or of the Committee of Directors shall
individually or collectively consent in writing to such action. Such written
consent or consents shall be filed with the Minutes of the proceedings of the
Board. Such action by written consent shall have the same force and effect as a
unanimous vote of such Directors. Any certificate or other document filed under
any provisions of the Texas Business Corporation Act which relates to actions
so taken shall state that the action was taken by unanimous written consent of
the Board of Directors to so act and such statement shall be prima facie
evidence of such authority.
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SECTION TWELVE. VALIDATION OF MEETING DEFECTIVELY CALLED. The
transaction of any meeting of the Board of Directors, however called and
noticed or wherever held, are as valid as though had at a meeting duly held
after regular call and notice, if a quorum is present and if, either before or
after the meeting, each of the Directors not present signs a waiver of notice,
a consent to holding the meeting or an approval of the Minutes thereof. All
such waivers, consents, or approvals shall be filed with the corporate records
or made a part of the Minutes of the meeting. Attendance by a Director at a
meeting shall constitute a waiver of notice of the meeting, unless the express
purpose for such attendance is to present the objection that the meeting is not
lawfully called or convened.
SECTION THIRTEEN. CONDUCT OF MEETINGS. The President, or, in his
absence, the Vice President designated by the Board of Directors, shall preside
at meetings of the Board of Directors. The Secretary of the Corporation, or in
his absence, any person appointed by the presiding officer, shall act as
Secretary of the Board of Directors.
SECTION FOURTEEN. COMPENSATION. Directors shall receive such
compensation for their services as Directors as shall be determined from time
to time by resolution of the Board. Any Director may serve the Corporation in
any other capacity as an officer, agent, employee or otherwise and receive
compensation therefor.
SECTION FIFTEEN. INTERESTED DIRECTORS. Any contract or other
transaction between the Corporation and any of its Directors (or any
corporation or firm in which any of its Directors is directly of indirectly
interested) shall be valid for all purposes notwithstanding the presence of
such Director at the meeting; provided however, the foregoing shall apply only
if the interest of each such Director is known or disclosed to the Board of
Directors and it shall nevertheless authorize or ratify such contract or other
transaction by a majority of the Directors present, each such interested
Director to be counted in determining whether a quorum is present but not in
calculating the majority necessary to carry such vote.
SECTION SIXTEEN. EXECUTIVE COMMITTEE. The Board of Directors may at
any time appoint two (2) or more Directors to serve and act as an Executive
Committee. The Executive Committee so appointed shall have such power and
authority to conduct the business and affairs of the Corporation as is vested
by law, the Articles of Incorporation and these Bylaws in the Board of
Directors as a whole, except that it may not take any action that is
specifically required by statute to be taken by the entire Board of Directors.
Members of the Executive Committee shall receive such compensation as the Board
or Directors may from time to time provide. Each Director shall be deemed to
have assented to any action of the Executive Committee unless he shall, within
seven (7) days after receiving actual or constructive notice of such action,
deliver his written dissent thereto to the Secretary of the Corporation.
Members of the Executive Committee shall serve at the pleasure of the Board of
Directors.
ARTICLE FOUR - OFFICERS
SECTION ONE. OFFICERS. The Officers of the Corporation shall be a
President and a Secretary and may be a Vice President and a Treasurer. The
Corporation may also have, at the discretion of the Board of Directors, one or
more additional Vice Presidents, one or more Assistant
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Treasurers, and such other Officers as may be appointed in accordance with the
Provisions of Section Three of this Article. One person may hold two or more
offices.
SECTION TWO. ELECTION. The Officers of the Corporation shall be
elected annually by the Board of Directors and each shall hold his office until
he shall resign or shall be removed or otherwise is qualified to serve, or his
successors shall be elected and qualified.
SECTION THREE. ADDITIONAL OFFICERS. The Board of Directors may appoint
such other officers or agents as the business of the Corporation may require,
each of whom shall hold office for such period, have such authority and perform
such duties as are provided in these Bylaws or as the Board or Directors may
from time to time determine.
SECTION FOUR. COMPENSATION. The compensation of the President, all
Vice Presidents, the Secretary and the Treasurer shall be fixed by the Board of
Directors, but the compensation of all minor officers and all other agents and
employees of the Corporation may be fixed by the President, unless by
resolution the Board of Directors shall determine otherwise; provided, however,
that without the express approval of the Board of Directors, the President may
not enter into any employment agreement on behalf of the Corporation with any
person which may not be terminated by the Corporation, either at will or upon
thirty (30) days written notice.
SECTION FIVE. REMOVAL AND RESIGNATION. Any Officer may be removed,
either with or without cause, by a majority of the Directors in office, at any
regular or special meeting of the Board; provided, however, that such removal
shall be without prejudice to the contract rights, if any, of the person
removed. Any Officer may resign at any time by giving written notice to the
Board of Directors or to the President or to the Secretary of the Corporation.
Any such resignation shall take effect at the date of the 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.
SECTION SIX. VACANCIES. If the office of the President, Vice
President, Secretary or Treasurer becomes vacant by reason of death,
resignation, removal or otherwise, the Board of Directors shall elect a
successor who shall hold office for the unexpired term and until his successor
is elected.
SECTION SEVEN. PRESIDENT. The President shall be the Chief Executive
Officer of the Corporation and shall, subject to the control of the Board of
Directors, have general supervision, direction and control of the business and
Officers of the Corporation and shall have the general powers and duties of
management usually vested in the office of President of a corporation and shall
have such other powers and duties as may be prescribed by the Board of
Directors or the Bylaws. Within this authority and in the course of his duties
he shall:
(a) Preside at all meetings of the Shareholders and all meetings
of the Board of Directors and shall be ex officio a member of
the Executive Committee, if any;
(b) Sign all certificates of stock of the Corporation;
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(c) When authorized by the Board of Directors or required by law,
execute in the name of the Corporation deeds, conveyances,
notices, leases, checks, drafts, bills of exchange, warrants,
promissory notes, bonds, debentures, contracts and other
papers and instruments in writing and, unless the Board of
Directors shall order otherwise by resolution, make such
contracts as the ordinary conduct of the Corporation's
business may require; and
(d) Appoint and remove, employ and discharge and prescribe the
duties and fix the compensation of all agents, employees and
clerks of the Corporation other than the duly appointed
Officers, subject to the approval of the Board of Directors,
and control, subject to the direction of the Board of
Directors, all of the Officers, agents and employees of the
Corporation.
SECTION EIGHT. VICE PRESIDENT. In the absence or disability of the
President, the Vice President designated by the Board of Directors shall
perform all the duties of the President and, when so acting, shall have the
powers of and be subject to all the restrictions on the President. The Vice
President or Vice Presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for him or them by the
Board of Directors or the Bylaws.
SECTION NINE. SECRETARY. The Secretary shall:
(a) Attest and keep at the principal office of the Corporation
the original or a copy of its Bylaws as amended or otherwise
altered to date;
(b) Keep at the principal office of the Corporation or such other
place as the Board of Directors may order, a book of Minutes
of all meetings of its directors, Shareholders and Executive
Committee, with the time and place of holding, whether
regular or special, and, if special, how authorized, the
notice thereof given, the names of those present at
Directors' meetings, the number of shares or members present
or represented at Shareholder's meetings and the proceedings
thereof;
(c) Sign or attest such documents as may be required by law or
the business of the Corporation and keep the corporate seal
and affix it to such instruments as may be necessary or
proper;
(d) Be custodian of the records and of the seal of the
Corporation;
(e) See that all notices are duly given in accordance with the
provisions of these Bylaws or as required by law;
(f) Keep at the principal office of the Corporation a share
register or duplicate share register showing the names of the
Shareholders and their addresses; the number, date of issue,
and class of shares represented by each outstanding share
certificate surrendered for cancellation.
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(g) See that the books, reports, statements, certificates and all
other documents and records required by law are properly kept
and filed; and
(h) In general, perform all duties incident to the office of
Secretary and such other duties as from time to time may be
assigned by the Board or Directors.
SECTION TEN. TREASURER. The Treasurer shall:
(a) Have charge and custody of, and be responsible for, all funds
and securities of the Corporation and deposit all such finds
in the name of the Corporation in such banks, trust companies
or other depositories as shall be selected by the Board of
Directors;
(b) Receive, and give receipt for, moneys due and payable to the
Corporation from any source whatsoever;
(c) Disburse or cause to be disbursed, the funds of the
Corporation as may be directed by the Board of Directors,
taking proper vouchers for such disbursements, gains, losses,
capital, surplus and shares;
(d) Keep and maintain adequate and correct accounts of the
Corporation's properties and business transactions including
accounts of its assets, liabilities, receipts, disbursements,
gains, losses, capital, surplus and shares;
(e) Render to the President and Directors, whenever requested, an
account of all transactions as Treasurer and of the financial
condition of the Corporation;
(f) Prepare, or cause to be prepared, and certify the financial
statements to be included in the annual report to
Shareholders and statements of the affairs of the Corporation
when requested by Shareholders holding at least ten percent
(10%) of the number of outstanding shares of the Corporation;
and
(g) In general, perform all the duties incident to the office of
Treasurer and such other duties as from time to time may be
assigned by the Board or Directors.
ARTICLE FIVE - EXECUTION OF INSTRUMENTS
SECTION ONE. AUTHORITY FOR EXECUTION OF INSTRUMENTS. The Board of
Directors, except as otherwise provided in these Bylaws, may authorize any
Officer or Officers, agent or agents, to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the Corporation and such
authority may be general or confined to specific instances; and, unless so
authorized, no Officer, agent or employees shall have any power or authority to
bind the Corporation by any contract or engagement or to pledge its credit or
to render it liable pecuniarily for any purpose or in any amount.
SECTION TWO. EXECUTION OF INSTRUMENTS. Unless otherwise specifically
determined by the Board of Directors or otherwise required by law, formal
contracts of the
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Corporation, promissory notes, deeds of trust, mortgages and other evidences of
indebtedness of the Corporation and other corporate instruments and documents
and certificates of shares of stock owned by the Corporation shall be executed,
signed or endorsed by the President and may have the corporate seal affixed
thereto.
ARTICLE SIX - DEPOSIT OF FUNDS
SECTION ONE. BANK ACCOUNTS. All funds of the Corporation shall be
deposited from time to time to the credit of the Corporation with such banks,
trust companies or other depositories as the Board of Directors may select.
SECTION TWO. SIGNING OF CHECKS. All checks, drafts or other orders for
payment of money, notes or other evidences or indebtedness, issued in the name
of or payable to the Corporation, shall be signed or endorsed by such person or
persons and in such manner as shall be determined from time to time by
resolution of the Board or Directors.
ARTICLE SEVEN - ISSUANCE AND TRANSFER OF SHARES
SECTION ONE. ISSUANCE OF STOCK. The Board of Directors may offer for
sale and issue shares of the common stock of the Corporation as authorized in
the Articles of Incorporation.
SECTION TWO. CERTIFICATES FOR FULLY PAID SHARES. Neither shares nor
certificates representing such shares may be issued by the Corporation until
the full amount of the consideration has been paid. When such consideration has
been paid to the Corporation, the shares shall be deemed to have been issued
and the certificate representing such shares shall be issued to the
Shareholder.
SECTION THREE. CONSIDERATION FOR SHARES. The consideration paid for
the issuance of shares shall consist of money paid, labor done or property
actually received. Neither promissory notes nor the promise of future services
shall constitute payment or part payment for shares of the Corporation.
SECTION FOUR. CERTIFICATES REPRESENTING SHARES. Certificates in the
form as may be determined by the Board or Directors and as shall conform to the
requirements of the statutes, the Articles of Incorporation and these Bylaws
shall be delivered representing all shares to which Shareholders are entitled.
The certificates shall be consecutively numbered and shall be entered in the
books of the Corporation as they are issued. Each certificate shall be signed
by the President of the Corporation, may be signed by the Secretary of the
Corporation and shall be sealed with the seal of the Corporation. Each
certificate shall state the following upon the face thereof:
(a) That the Corporation is organized under the laws of the State
of Texas;
(b) The name of the person to whom issued;
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23
(c) The number and class of shares and the designation of the
series, if any, which such certificate represents; and
(d) The par value of each share represented by the certificate,
or a statement that the shares are without par value.
SECTION FIVE. REPLACEMENT OF CERTIFICATES. No new certificates shall
be issued until the former certificate for the shares represented thereby shall
have been surrendered and canceled, except in the case of lost or destroyed
certificates for which the Board of Directors may order new certificates to be
issued upon such terms, conditions and guarantees as the Board may see fit to
impose, including the filing of sufficient indemnity.
SECTION SIX. TRANSFER AGENTS AND REGISTRARS. The Board of Directors
may appoint one or more transfer agents and may appoint one or more registrars
who shall be appointed at such times and places as the requirements of the
Corporation may necessitate and as the Board of Directors may designate.
SECTION SEVEN. TRANSFER OF SHARES. Shares of the stock shall be
transferable only on the books of the Corporation by the holder thereof in
person or by his duly authorized attorney. Upon surrender to the Corporation or
transfer agent of the Corporation of a certificate or certificates representing
shares, duly endorsed or accomplished by a proper evidence of succession,
assignment or authority to transfer, it shall be the duty of the Corporation or
the transfer agent of the Corporation to issue a new certificate or
certificates to the person entitled thereto, to cancel the old certificate or
certificates and to record the transaction upon its books. The transferee in
any transfer of shares shall be deemed to have full notice of, and to consent
to, the Bylaws of the Corporation to the same extent as if he had signed a
written assent thereto. Whenever any transfer of shares shall be made for
collateral security, and not absolutely, and written notice thereof shall be
given to the Secretary of the Corporation or its transfer agent, if any, such
fact shall be stated in the entry of the transfer.
SECTION EIGHT. REGISTERED SHAREHOLDERS. The Corporation shall be
entitled to 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 beneficial claim to or interest in the share or shares on the part
of any other person.
SECTION NINE. REASONABLE DOUBT AS TO RIGHT TO TRANSFER.
When a transfer of shares is requested and there is reasonable doubt as to the
right of the person seeking the transfer, the Corporation or its transfer
agent, if any, before recording the transfer of the shares on its books or
issuing any certificate therefor, may require from the person seeking the
transfer reasonable proof of his right to the transfer. If there remains a
reasonable doubt of the right to the transfer, the Corporation may refuse a
transfer unless the person gives adequate security or a bond of indemnity
executed by a corporate surety or by two (2) individual sureties satisfactory
to the Corporation as to form, amount and responsibility of the sureties. The
bond shall be conditioned to protect the Corporation, its Officers, transfer
agents and registrars, if any, or any of them against any loss, damage, expense
or other liability to the owner of the shares of a new certificate for shares.
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ARTICLE EIGHT - CORPORATE RECORDS, REPORTS AND SEAL
SECTION ONE. MINUTES OF MEETINGS. The Corporation shall keep and
maintain a book of Minutes of all meetings of its Directors and of its
Shareholders with the time and place of holding, whether regular or special,
and, if special, how authorized, the notice thereof given, the names of those
present at Directors' meetings, the number of shares present or represented at
Shareholders' meetings and the proceedings thereof.
SECTION TWO. BOOKS OF ACCOUNTS. The Corporation shall keep and
maintain adequate and correct accounts of its properties and business
transactions, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital surplus and shares. Any surplus,
including earned surplus, paid-in surplus and surplus arising from a reduction
of stated capital, shall be classified according to source and shown in a
separate account.
SECTION THREE. SHARE REGISTER. The Corporation shall keep and maintain
a share register, showing the names of the Shareholders and their addresses,
the number and classes of shares held by each, and the number and date of
cancellation of every certificate surrendered for cancellation.
SECTION FOUR. INSPECTION OF RECORDS BY SHAREHOLDER. Any person who
shall have been a Shareholder of record for at least six (6) months immediately
preceding this demand or who is the holder of record of at least five percent
(5%) of all of the outstanding shares of the Corporation, on written demand
stating the purpose thereof, has the right to examine, in person or by agent,
accountant or attorney, at any reasonable time or times, for any proper
purpose, its books and records of account, Minutes and record of Shareholders
and is entitled to make extracts therefrom.
SECTION FIVE. INSPECTION OF RECORDS BY DIRECTORS. Every Director shall
have the absolute right at any reasonable time to inspect all books, records,
documents of every kind and the physical properties of the Corporation. Such
inspection by a Director may be made in person or by agent or attorney and the
right of inspection includes the right to make extracts therefrom.
SECTION SIX. FINANCIAL REPORTS. The Board of Directors must, when
requested by the holders of at least one-third (1/3) of the outstanding shares
of the Corporation, present written reports concerning the situation and
business of the Corporation.
SECTION SEVEN. FISCAL YEAR. The fiscal year of the Corporation shall
be determined by the Board of Directors.
SECTION EIGHT. CORPORATE SEAL The Board of Directors may adopt, use
and thereafter alter the corporate seal.
SECTION NINE. DIVIDENDS. The Board of Directors may declare and the
Corporation may pay dividends on its outstanding shares in cash, property or
its own shares, pursuant to law and subject to the provisions of its Articles
of Incorporation.
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SECTION TEN. CONTRACTS. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or to execute
and deliver any instrument in the name, and on behalf of, the Corporation. This
authority may be general or confined to specific instances.
SECTION ELEVEN. LOANS. No loans shall be contracts on behalf of the
Corporation and no evidence of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. This authority may be
general or confined to specific instances.
SECTION TWELVE. RESERVES. The Board of Directors may by resolution
create a reserve or reserves out of earned surplus for any purpose or purposes,
and may abolish any such reserve in the same manner.
ARTICLE NINE - INDEMNIFICATION OF OFFICERS AND DIRECTORS
SECTION ONE. INDEMNIFICATION. The Corporation shall be empowered, to
the extent allowed by Article 2.02-1 of the Texas Business Corporation Act, to
indemnify Directors, Officers, agents and employees as follows:
(a) PERSONS. The Corporation shall indemnify to the extent
provided in paragraph (b), (d) or (f):
(1) any person who is or was Director, Officer, agent, or
employee of the Corporation, and
(2) any person who serves or served at the Corporation's
request as a Director, Officer, agent, employee, partner or
trustee of another corporation or of a partnership, joint
venture, trust or other enterprise.
(b) EXTENT - DERIVATIVE SUITS. In case of a suit by or in the
right of the Corporation against a person named in paragraph
(a) by reason of his holding a position named in paragraph
(a), the Corporation shall indemnify him, if he satisfies the
standard in paragraph (c), for expenses (including attorney's
fees but excluding amounts paid in settlement) actually and
reasonably incurred by him in connection with the defense or
settlement of the suit.
(c) STANDARD - DERIVATIVE SUIT. In case of a suit by or in the
right of the Corporation, a person named in paragraph (a)
shall be indemnified only if:
(1) he is successful on the merits of otherwise; or
(2) he acted in good faith in the transaction which is the
subject of this suit, and in a manner he reasonably believed
to be in, or not opposed to, the best interests of the
Corporation. However, he shall not be indemnified in respect
of any claim, issue or matter as to which he has been
adjudged liable for negligence or misconduct in the
performance of his duty to the Corporation unless (and only
to the extent that)
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26
the court in which the suit was brought shall determine upon
application that, despite the adjudication but in view of all
the circumstances, he is fairly and reasonably entitled to
indemnity for such expense as the court shall deem proper.
(d) EXTENT - NONDERIVATIVE SUITS. In case of a suit, action or
proceeding (whether civil, criminal, administrative or
investigative), other than a suit by or in the right of the
Corporation, together hereinafter referred to as a
nonderivative suit, against a person named in paragraph (a)
by reason of his holding a position named in paragraph (a),
the Corporation shall indemnify him if he satisfies the
standard in paragraph (e), for amounts actually and
reasonably incurred by him in connection with the defense or
settlement of the nonderivative suit as:
(1) expenses (including attorney's fees);
(2) amounts paid in settlement;
(3) judgments; and
(4) fines.
(e) STANDARD - NONDERIVATIVE SUITS. In case of a nonderivative
suit, a person named in paragraph (a) shall be indemnified
only if:
(1) he is successful on the merits or otherwise; or
(2) he acted in good faith in the transaction which is the
subject of the nonderivative suit, and in a manner he
reasonably believed to be in, and not opposed to, the best
interests of the Corporation and, with respect to any
criminal action or proceeding, he had no reason to believe
his conduct was unlawful. The termination of a nonderivative
suit by judgment, order, settlement, conviction or upon a
plea of nolo contendre or its equivalent shall not, of
itself, create a presumption that the person failed to
satisfy the standard of this paragraph (e) (2).
(f) DETERMINATION THAT STANDARD HAS BEEN MET. A determination
that the standard of paragraph (c) or (e) has been satisfied
may be made by a court or, except as stated in paragraph (c)
(2) (second sentence), the determination may be made by:
(1) a majority of the Directors of the Corporation (whether
or not a quorum) who were not parties to the action, suit or
proceeding;
(2) independent legal counsel (appointed by a majority of the
Directors of the Corporation, whether or not a quorum, or
elected by the Shareholders of the Corporation) in a written
opinion; or
(3) the Shareholders of the Corporation.
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27
(g) PRORATION. Anyone making a determination under paragraph (f)
may determine that a person has met the standard as to some
matters but not as to others, and may reasonably prorate
amounts to be indemnified.
(h) ADVANCE PAYMENT. The Corporation may pay in advance any
expenses (including attorney's fees) which may become subject
to the indemnification under paragraphs (a)-(g) if:
(1) the Board of Directors authorized the specific payment;
and
(2) the person receiving the payment undertakes in writing to
repay unless it is ultimately determined that he is entitled
to indemnification by the Corporation under paragraphs
(a)-(g).
(i) NONEXCLUSIVE. The indemnification provided in paragraphs
(a)-(g) shall not be exclusive of any other rights to which a
person may be entitled by law, Bylaw, Agreement, vote of
Shareholders or disinterested Directors, or otherwise.
(j) CONTINUATION. The indemnification and advance payment
provided in paragraphs (a)-(h) shall continue as to a person
who has ceased to hold a position named in paragraph (a) and
shall inure to his heirs, executors and administrators.
(k) INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who holds or who has held
any position named in paragraph (a), against any liability
incurred by him in any such position, or arising out of his
status as such, whether or not the Corporation would have
power to indemnify him against such liability under
paragraphs (a)-(h).
(l) REPORTS. Indemnification payments, advance payments and
insurance purchases and payments made under paragraphs
(a)-(k) shall be reported in writing to the Shareholders of
the Corporation with the next notice of annual meeting, or
within six (6) months, whichever is sooner.
(m) SEVERABILITY. All of the provisions of this Article Nine are
separate from each other, and to the extent a particular
provision is held by a court of competent jurisdiction to be
invalid for any reason, then such holding shall not affect
the enforceability and binding effect of the rest of the
provisions of this Article Nine not specifically held to be
invalid, with the remaining parts of this Article Nine
remaining in full force and effect.
ARTICLE TEN - SURETY BONDS
SECTION ONE. SURETY BONDS. When the Board of Directors so directs,
Officers and agents of the Corporation shall be bonded for the faithful
performance of their duties and for the restoration to the Corporation of, in
case of their death, resignation, retirement, disqualification or removal from
office, all books, papers, vouchers, money and other properties of whatever
kind in
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their possession or under their control belonging to the Corporation,
in the amounts and by the surety companies as the Board of Directors may
determine. The premiums on the bonds shall be paid by the Corporation and the
bonds so furnished shall be in the custody of the Secretary.
ARTICLE ELEVEN - AMENDMENT OF BYLAWS
SECTION ONE. AMENDMENT. These Bylaws may be altered, amended or
repealed, and new Bylaws may be adopted, by the Directors, subject to repeal or
change by action of the Shareholders.
The foregoing set of Bylaws was unanimously adopted as the Bylaws of
Cyberguide Online, Inc., by the Board of Directors effective as of November 18,
1998, to certify which witness my signature.
/s/ JAMES B. TUCKER
------------------------------------
JAMES B. TUCKER, SECRETARY
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