Exhibit 3.34
BYLAWS
OF
OMNIMOUNT SYSTEMS, INC.
AN ARIZONA CORPORATION
ARTICLE 1
APPLICABILITY OF BYLAWS
Except as otherwise provided by statute or the Corporation's Articles of
Incorporation, these Bylaws govern the management of the business and the
conduct of the affairs of the Corporation.
ARTICLE 2
OFFICES
2.1 Principal Executive Office. The Board of Directors shall establish
the location of the principal executive office of the Corporation at any place
within or outside of the State of Arizona.
2.2 Other Offices. The Board of Directors may establish other offices at
any place or places within or outside of the State of Arizona.
2.3 Change in Location or Number of Offices. The Board of Directors may
change any office from one location to another or eliminate any office or
offices.
ARTICLE 3
MEETINGS OF SHAREHOLDERS
3.1 Place of Meetings. Meetings of the shareholders shall be held at any
place within or outside of the State of Arizona designated either by the Board
of Directors or by the written consent of all persons entitled to vote at any
such meeting or, in the absence of such designation or written consent, at the
principal executive office of the Corporation.
3.2 Annual Meetings. An annual meeting of the shareholders shall be held
within 180 days following the end of the fiscal year of the Corporation at a
date and time designated by the Board of Directors. Directors shall be elected
and any other proper business may be transacted at each annual meeting.
3.3 Special Meetings.
(a) Special meetings of the shareholders may be called at any time
by the Board of Directors, the Chairman of the Board, Chief Executive Officer,
the President, or the holders of shares entitled to cast not less than 10
percent of the votes at such meeting.
(b) Any request for the calling of a special meeting of the
shareholders shall (1) be in writing, (2) specify the date and time thereof,
which shall be not earlier than 35 and not later than 60 days after receipt of
the request, (3) specify the general nature of the business to be transacted,
and (4) be given either personally, by registered mail, or by telegraphic or
other facsimile transmission to the Chairman of the Board, Chief Executive
officer, the President, any vice president, or the Secretary of the Corporation.
The officer receiving a proper request to call a special meeting of the
shareholders shall cause notice to be given pursuant to the provisions of
section 3.4 of this article to the shareholders entitled to vote at such
meeting. If the notice is not given within 20 days after receipt of the request,
the persons entitled to call the meeting may give the notice. Such notice shall
state that a meeting will be held at the date and time specified by the person
or persons calling the meeting, and shall specify the general nature of the
business to be transacted at such meeting.
(c) No business may be transacted at a special meeting unless the
general nature thereof was stated in the notice of such meeting.
3.4 Notice of Annual, Special, or Adjourned Meetings.
(a) Whenever any meeting of the shareholders is to be held, a
written notice of such meeting shall be given to each shareholder entitled to
vote at such meeting not fewer than 10 and not more than 60 days before the date
of such meeting to each shareholder entitled to vote at such meeting. Such
notice shall be given in the manner prescribed in subdivision (d) of this
section. The notice shall state the place, time, and hour of the meeting and (1)
in the case of a special meeting, the general nature of the business to be
transacted, or (2) in the case of the annual meeting, those matters which the
Board of Directors, at the time of the giving of the notice, intends to present
for action by the shareholders, including, whenever directors are to be elected
at a meeting, the names of nominees intended at the time of giving of the notice
to be presented by management for election.
(b) Any proper matter may be presented for action at an annual
meeting, except as may be otherwise provided under Arizona law.
(c) Notice need not be given of an adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken,
except that if the adjournment is for more than 45 days or if after the
adjournment a new record date is provided for the adjourned meeting, a notice of
the adjourned meeting shall be given to each shareholder of record entitled to
vote at such meeting.
(d) Notice of any meeting of the shareholders or any report shall be
given either personally or by first-class-mail, postage prepaid, or other means
of written communication, addressed to each shareholder at his address appearing
on the books of the corporation or given by him to the Corporation for the
purpose of notice; or if no such address appears or is given, at the place where
the principal executive office of the Corporation is located or by publication
at least once in a newspaper of general circulation in the county in which the
principal executive office is located. The notice or report shall be deemed to
have been given at the time when delivered personally to the recipient or
deposited in the mail or sent by other means of written communication. An
affidavit or mailing of any notice or report in accordance
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with the provisions of these Bylaws or Arizona law, executed by the Secretary,
assistant secretary, or any transfer agent of the Corporation, shall be prima
facie evidence of the giving of the notice or report.
(e) If any notice or report addressed to the shareholder at his
address appearing on the books of the Corporation is returned to the Corporation
by the United States Postal Service marked to indicate that the United States
Postal Service is unable to deliver the notice or report to the shareholder at
such address, all future notices or reports shall be deemed to have been duly
given without further mailing if the same shall be available for the shareholder
upon his written demand at the principal executive office of the Corporation for
a period of one year after the date of the giving of the notice or report to all
other shareholders.
3.5 Record Date.
(a) The Board of Directors may establish a date as a record date for
the determination of the shareholders (1) entitled to notice of any meeting or
to vote at such meeting, (2) entitled to receive payment of any dividend or
other distribution or allotment of any rights, or (3) entitled to exercise any
rights in respect of any other lawful action. The record date so established
shall be not more than 60 and not fewer than 10 days prior to the date of any
meeting of the shareholders, nor shall it be more than 60 days prior to any
other action.
(b) In the event no record date is fixed:
(1) The record date for determining the shareholders entitled
to notice of or to vote at a meeting of shareholders shall be at the close of
business on the business day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the business day next preceding
the day on which the meeting is held.
(2) The record date for determining shareholders entitled to
give consent to corporate action in writing without a meeting, when no prior
action by the Board of Directors has been taken, shall be the day on which the
first written consent is given.
(3) The record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto, or the 60th day prior to the
date of such other action, whichever is later.
(c) Only shareholders of record on the close of business on the
record date are entitled to notice and to vote or to receive a dividend,
distribution, or allotment of rights or to exercise such rights, as the case may
be, notwithstanding any transfer of any share on the books of the Corporation
after the record date.
(d) A determination of shareholders of record entitled to notice of
or to vote at a meeting of the shareholders shall apply to any adjournment of
the meeting unless the Board of Directors fixes a new record date for the
adjourned meeting, provided that the Board of Directors shall fix a new record
date if the meeting is adjourned for more than 45 days from the date set for the
original meeting.
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3.6 Quorum; Action at Meetings.
(a) A majority of the shares entitled to vote at a meeting of the
shareholders, represented in person or by proxy, shall constitute a quorum for
the transaction of business at such meeting.
(b) If a quorum is present, the affirmative vote of the majority of
the shares represented at the meeting and entitled to vote on any matter shall
be the act of the shareholders, unless the vote of a greater number is required
by law or the Articles of Incorporation.
(c) The shareholders present at a duly called or held meeting at
which a quorum is present may continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum, if any action taken (other than adjournment) is approved by at least a
majority of the shares required to constitute a quorum.
3.7 Adjournment. Any meeting of the shareholders may be adjourned from
time to time, whether or not a quorum is present, by the vote of a majority of
the shares represented at such meeting either in person or by proxy. At the
adjourned meeting the shareholders may transact any business which might have
been transacted at the original meeting.
3.8 Validation of Defectively Called, Noticed, or Held Meetings.
(a) The transactions of any meeting of the shareholders, however
called and noticed, and wherever held, shall be as valid as though had at a
meeting duly held after regular call and notice if a quorum is present either in
person or by proxy and if, either before or after the meeting, each of the
persons entitled to vote at such meeting, who is not present in person or by
proxy signs a written waiver of notice or a consent to the holding of the
meeting or an approval of the minutes thereof. All such waivers, consents, and
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
(b) Attendance of a person at a meting shall constitute a waiver of
notice of an presence at such meeting, except when the person objects, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Attendance at a meeting shall not constitute
waiver of any right to object to the consideration of any matter required by the
General Corporation law of the State of Arizona to be included in the notice but
not so included, if such objection is expressly made at the meeting.
(c) Any written waiver of notice shall comply with Arizona law.
3.9 Voting for Election of Directors.
(a) Unless precluded by Arizona law, every shareholder complying
with subdivision (b) of this section and entitled to vote at any election of
directors may cumulate his votes and give one candidate a number of votes equal
to the number of directors to be elected multiplied by the number of votes to
which his shares are entitled, or distribute his votes on the same principle
among as many candidates as he may desire.
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(b) No shareholder shall be entitled to cumulate his votes (i.e.,
cast for any one or more candidates a number of votes greater than his shares)
unless the candidate's or candidates, names for which he desires to cumulate his
votes have been placed in nomination prior to the voting and the shareholder has
given notice at the meeting prior to the voting of his intention to cumulate his
votes. If any one shareholder has given such notice, all shareholders may
cumulate their votes for candidates in nomination.
(c) Elections for directors may be by voice vote or by ballot unless
any shareholder entitled to vote demands election by ballot at the meeting prior
to the voting, in which case the vote shall be by ballot.
(d) In any election of directors, the candidates receiving the
highest number of votes of the shares entitled to be voted for them shall be
elected as directors.
3.10 Proxies.
(a) Every person entitled to vote shares may authorize another
person or persons to act with respect to such shares by a written proxy signed
by him or his attorney in fact and filed with the Secretary of the Corporation.
A proxy shall be deemed signed is the shareholder's name is placed on the proxy
(whether by manual signature, typewriting, telegraphic transmission, or
otherwise) by him or his attorney in fact.
(b) Any duly executed proxy shall continue in full force and effect
until the expiration of the term specified therein, unless it is earlier revoked
by the person executing it prior to the voting of such proxy either (1) by a
writing delivered to the Corporation stating that it is revoked, (2) by a
subsequent proxy executed by the person executing the proxy, or (3) by the
attendance at the meeting and voting in person by the person executing the
proxy. The date contained on the form of proxy shall be deemed to be the date of
its execution.
(c) A proxy which states that it is irrevocable is irrevocable for
the period specified therein subject to the provisions of Arizona law.
3.11 Inspectors of Election.
(a) In advance of any meeting of the shareholders, the Board of
Directors may appoint either one or three persons (other than nominees for the
office of director) as inspectors of election to act at such meeting or any
adjournments thereof. If inspectors of election are not so appointed, or if any
person so appointed fails to appear or refuses to act, the chairman of any such
meeting may, and on the request of any shareholder or his proxy shall, appoint
inspectors of election (or persons to replace those who so fail or refuse to
act) at the meeting. If appointed at a meeting on the request of one or more
shareholders or the proxies thereof, the majority of shares represented in
person or by proxy shall determine whether one or three inspectors are to be
appointed.
(b) The duties of inspectors of election and the manner of their
performance shall be as prescribed in Arizona statutes.
3.12 Action by Written Consent.
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(a) Subject to subdivisions (b) and (c) of this section, any action
which may be taken at any annual or special meeting of the shareholders may be
taken without a meeting, without a vote, and without prior notice if a consent
in writing, setting forth the action so taken, is signed by the holders of
outstanding shares having not less than the minimum number of votes which would
be necessary to authorize or take such action at a meeting in which all shares
entitled to vote on such matter were present and voted. All such consents shall
be filed with the Secretary of the Corporation and maintained with the corporate
records.
(b) Except for the election of a director by written consent to fill
a vacancy (other than a vacancy created by removal), directors may be elected by
written consent only by the unanimous written consent of all shares entitled to
vote for the election of directors. In the case of an election of a director by
written consent to fill a vacancy (other than a vacancy created by removal), any
such election requires the consent of a majority of the outstanding shares
entitled to vote.
(c) Unless the consents of all shareholders entitled to vote have
been solicited in writing, notice of any shareholder approval without a meeting
by less than unanimous written consent shall be given as provided in Arizona
statutes.
(d) Any shareholder giving a written consent, or his proxy holders,
or a personal representative of the shareholder may revoke the consent by a
writing received by the Corporation prior to the time that written consents of
the number of shares required to authorize the proposed action have been filed
with the Secretary of the Corporation, but may not do so thereafter. Such
revocation is effective upon its receipt by the Secretary of the Corporation.
ARTICLE 4
DIRECTORS
4.1 Authority of Directors. Subject to the provisions of the Arizona law
and any limitations in the Articles of Incorporation or these Bylaws as to
action to be authorized or approved by the shareholders, the business and
affairs of the Corporation shall be managed and all corporate powers shall be
exercised by or under the direction of the Board of Directors. Without prejudice
to such general powers, but subject to the same limitations, it is hereby
expressly declared that the Board of Directors shall have the power:
(a) to conduct, manage, and control the affairs and business of the
Corporation and to make such rules and regulations therefor, not inconsistent
with law or with the Articles of Incorporation or with the Bylaws, as the Board
of Directors may deem best;
(b) to elect and remove at pleasure the officers, agents, and
employees of the Corporation, prescribe their duties, and fix their
compensation;
(c) to authorize the issue of shares of stock of the Corporation
from time to time upon such terms as may be lawful, in consideration of money
paid, labor done, services actually rendered to the corporation or for its
benefit or in its formation or reorganization, debts or securities canceled, or
tangible or intangible property actually received, but neither promissory notes
of the purchaser (unless adequately secured by collateral other than the shares
acquired or
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unless permitted by Arizona law) nor future services shall constitute payment or
part payment for the shares of the Corporation;
(d) to borrow money and incur indebtedness for the purposes of the
Corporation and to cause to be executed and delivered therefor, in the corporate
name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges,
hypothecations, or other evidences of debt and securities therefor;
(e) to alter, repeal, or amend, from time to time, and at any time,
these bylaws and any and all amendments of the same, and from time to time, and
at any time, to make and adopt such new and additional Bylaws as may be
necessary and proper, subject to the power of the shareholders to adopt, amend,
or repeal such Bylaws, or to revoke the delegation of authority of the
directors, as provided by law.
4.2 Number of Directors.
(a) The authorized number of directors shall be five (5).
(b) The authorized number of directors may only be changed by an
amendment of this section approved by the vote or written consent of majority of
the outstanding shares entitled to vote; provided, however, that an amendment
reducing the authorized number to a number less than 5 shall not be adopted if
the votes cast against its adoption at a meeting (or the shares not consenting
in the case of action by written consent) exceed 16-2/3% of such outstanding
shares.
4.3 Election of Directors. Directors shall be elected at each annual
meeting of the shareholders.
4.4 Term of Office. Each director, including a director elected to fill
a vacancy, shall hold office until the expiration of the term for which he is
elected and until a successor has been elected.
4.5 Vacancies.
(a) A vacancy on the Board of Directors shall exist whenever any
authorized position of director is not then filled by a duly elected director,
without regard to whether such situation has been caused by death, resignation,
removal, change in the authorized number of directors, or otherwise.
(b) Except for a vacancy created by the removal of a director,
vacancies on the Board of Directors may be filled by a majority of the directors
then in office, whether or not less than a quorum, or by a sole remaining
director. A vacancy created by the removal of a director shall be filled only by
the shareholders.
(c) The shareholders may elect a director at any time to fill any
vacancy not filled by the directors.
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4.6 Removal.
(a) The Board of Directors may declare vacant the office of a
director who has been declared of unsound mind by an order of court or convicted
of a felony.
(b) Any or all of the directors may be removed without cause if such
removal is approved by a majority of the outstanding shares entitled to vote;
provided, however, that no director may be removed (unless the entire Board of
Directors is removed) if the votes cast against removal, or not consenting in
writing to such removal, would be sufficient to elect such director if voted
cumulatively at an election at which the same total number of votes were cast
(or, if such action is taken by written consent, all shares entitled to vote
were voted) and the entire number of directors authorized at the time of his
most recent election were then being elected.
(c) Any reduction of the authorized number of directors does not
remove any director prior to the expiration of his term of office.
4.7 Resignation. Any director may resign effective upon giving written
notice to the Chairman of the Board, the Chief Executive officer, the President,
the Secretary, or the Board of Directors of the Corporation, unless the notice
specifies a later time for the effectiveness of such resignation. If the
resignation is effective at a future time, a successor may be elected to take
office when the resignation becomes effective.
4.8 Fees and Compensation. Directors may be reimbursed for their
expenses, if any, for attendance at each meeting of the Board of Directors.
Directors may be paid for attendance at any such meeting, with the amount of
such payments to be determined by resolution of the Board of Directors. No such
payments shall preclude any director from serving the Corporation in any other
capacity and receiving compensation in any manner therefor.
ARTICLE 5
COMMITTEES OF THE BOARD OF DIRECTORS
5.1 Designation of Committees. The Board of Directors may, be resolution
adopted by a majority of the authorized number of directors, designate (1) one
or more committees, each consisting of two or more directors and (2) one or more
directors as alternate members of any committee, who may replace any absent
member at any meeting thereof. Any member or alternate member of a committee
shall serve at the pleasure of the Board of Directors.
5.2 Powers of Committees. Any committee, to the extent provided in the
resolution of the Board of Directors designating such committee, shall have all
the authority of the board, except with respect to:
(a) the approval of any action for which Arizona law also requires
any action by the shareholders;
(b) the filling of vacancies of the Board of Directors or on any
committee thereof;
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(c) the fixing of compensation of the directors for serving on the
Board of Directors or on any committee thereof;
(d) the amendment or repeal of these Bylaws or the adoption of new
bylaws;
(e) the amendment or repeal of any resolution of the Board of
Directors which by its express terms is not so amendable or repealable;
(f) a distribution to the shareholders of the Corporation, except at
a rate or in a periodic amount or within a price range determined by the Board
of Directors; or
(g) the designation of other committees of the Board of Directors or
the appointment of members or alternate members thereof.
ARTICLE 6
MEETINGS OF THE BOARD OF DIRECTORS AND COMMITTEES THEREOF
6.1 Place of Meetings. Regular Meetings of the Board of Directors shall
be held at any place within or outside of the State of Arizona which has been
designated from time to time by the Board of Directors or, in the absence of
such designation, at the principal executive office of the Corporation. Special
meetings of the Board of Directors shall be held either at any place within or
outside of the State of Arizona which has been designated in the notice of the
meeting or, if not stated in the notice or if there is no notice, at the
principal executive office of the Corporation.
6.2 Organization Meeting. Immediately following each annual meeting of
the shareholders of the Board of Directors shall hold a regular meeting for the
purpose of organization and the transaction of other business. Notice of any
such meeting is not required.
6.3 Other Regular Meetings. Other regular meetings of the Board of
Directors shall be held without call at such times as shall be designated from
time to time by the Board of Directors. Notice of any such meeting is not
required.
6.4 Special Meetings. Special meetings of the Board of Directors may be
called at any time for any purpose or purposes by the chairman of the Board,
Chief Executive Officer, the President, any vice president, the Secretary, or
any two directors. Notice shall be given of any special meeting of the Board of
Directors.
6.5 Notice of Special Meetings.
(a) Notice of the time and place of special meetings of the Board of
Directors shall be delivered personally or by telephone to each director or sent
to each director by firstclass mail or telegraph, charges prepaid. Such notice
shall be given four days prior to the holding of the special meeting if sent by
mail or 48 hours prior to the holding thereof is delivered personally or given
by telephone or telegraph. The notice or report shall be deemed to have been
given at the time when delivered to the recipient personally or deposited in the
mail or sent by other means of written communication.
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(b) Notice of any special meeting of the Board of Directors need not
specify the purpose thereof and need not be given to any director who signs a
waiver of notice, whether before or after the meeting, or who attends the
meeting without protesting, prior thereto or at its commencement, the lack of
notice to him.
6.6 Validation of Defectively Held Meetings. The transactions 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 written waiver of notice, a consent to holding the
meeting, or an approval of the minutes thereof. Such waivers, consents, and
approvals (1) need not specify the purpose of any meeting of the Board of
Directors and (2) shall be filed with the corporate records or made a part of
the minutes of the meeting.
6.7 Quorum: Action at Meetings: Telephone Meetings.
(a) A majority of the authorized number of directors shall
constitute a quorum for the transaction of business. Every act or decision done
or made by a majority of the directors present at a meeting duly held at which a
quorum is present is the act of the Board of Directors, unless action by a
greater proportion of the directors is required by law or the Articles of
Incorporation.
(b) A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for such
meeting.
(c) Members of the Board of Directors may participate in a meeting
through use of conference telephone or similar communications equipment so long
as, all members participating in such meeting can hear one another.
6.8 Adjournment. A majority of the directors present, whether or not a
quorum is present, may adjourn any meeting to another time and place. If the
meeting is adjourned for more than 24 hours, notice of any adjournment to
another time or place shall be given prior to the time of the adjourned meeting
to the directors who were not present at the time of the adjournment.
6.9 Action without a Meeting. Any action required or permitted to be
taken by the Board of Directors may be taken without a meeting, if all members
of the Board 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 of Directors. Such action by written consent shall have
the same force and effect as a unanimous vote of such directors.
6.10 Meetings of and Action by Committees. The provisions of this article
apply to committees of the Board of Directors and action by such committees with
such changes in the language of these provisions as are necessary to substitute
the committee and its members for the Board of Directors and its members.
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ARTICLE 7
OFFICERS
7.1 Officers. The Corporation shall have as officers a Chairman of the
Board, Chief Executive Officer, a President, a Secretary, and a Chief Financial
Officer. The Corporation may also have at the discretion of the Board of
Directors one or more vice presidents, one or more assistant secretaries, one or
more assistant chief financial officers, and such other officers and may be
appointed in accordance with the provisions of section 7.3 of this article. One
person may hold two or more offices.
7.2 Election of Officers. The officers of the Corporation, except such
officers as may be appointed in accordance with the provisions of section 7.3 or
section 7.5 of this article, shall be chosen by and shall serve at the pleasure
of the Board of Directors, and shall hold their respective offices until their
resignation, removal, or other disqualification from service, or until their
respective successors shall be elected.
7.3 Subordinate Officers, etc. The Board of Directors may appoint by
resolution, and may empower the Chairman of the Board, Chief Executive Officer
or President to appoint, such other officers 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 determined from time to time by
resolution of the Board or, in the absence of any such determination, as are
provided in these Bylaws. Any appointment of an officer shall be evidenced by a
written instrument filed with the Secretary of the Corporation and maintained
with the corporate records.
7.4 Removal and Resignation.
(a) Any officer may be removed, either with or without cause, by the
board of Directors or, except in the case of any officer chosen by the Board of
Directors, by any officer upon whom such power of removal may be conferred by
resolution of the Board of Directors.
(b) Any officer may resign at any time effective upon giving written
notice to the Chairman of the Board, Chief Executive Officer, President, any
vice president, or Secretary of is the Corporation, unless the notice specifies
a later time for the effectiveness of such resignation.
7.5 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification, or any other cause shall be filled in the manner
prescribed in these Bylaws for regular appointments to such office.
7.6 Chairman of the Board and Chief Executive Officer. If there is a
Chairman of the Board, he shall, if present, preside at all meetings of the
Board of Directors and at all meetings of the shareholders, and he shall be,
unless otherwise decided by the Board, the Chief Executive Officer of the
Corporation with the general powers and duties of management usually vested in
the office of chief executive officer of a corporation, and he shall have and
execute such other powers and duties as may be from time to time assigned to him
by resolution of the Board of Directors.
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7.7 President. Subject to such supervisory powers, if any, as may be
given by the Board of Directors to the Chairman of the Board or to the Chief
Executive officer, if there be such officers, the President shall have general
supervision, direction, and control of the business and affairs of the
Corporation. The President shall be the chief executive officer of the
Corporation if the Chairman of the Board and Chief Executive officer is not
serving in such capacity. He shall preside, in the absence of the Chairman of
the Board, or if there be none, at all meetings of the Board of Directors and at
all meetings of the shareholders. Subject to control of the Board of Directors
and management powers and duties assigned to the chief executive officer, he
shall have general supervision, direction and control of the business affairs of
the Corporation and shall have such other powers and duties as may be prescribed
from time to time by resolution of the Board of Directors.
7.8 Vice President. In the absence or disability of the Chief Executive
Officer, President, the vice presidents in order of their rank as fixed by the
Board of Directors or, if not ranked, the vice president designated by the Board
of Directors, shall perform all the duties of the Chief Executive Officer, and
when so acting shall have all the powers of, and be subject to all the
restrictions upon, the Chief Executive Officer. The vice presidents shall have
such other powers and perform such other duties as from time to time may be
prescribed for them respectively by the Board of Directors or as the Chief
Executive officer may from time to time delegate.
7.9 Secretary.
(a) The Secretary shall keep or cause to be kept .(1) the minute
book, (2) the share register, and (3) the seal, if any, of the Corporation.
(b) The Secretary shall give, or cause to be given, notice of all
meetings of the shareholders and of the Board of Directors required by these
Bylaws or by law to be given, and shall have such other powers and perform such
other duties as may be prescribed from time to time by the Board.
7.10 Chief Financial officer.
(a) The Chief Financial officer shall keep, or cause to be kept, the
books and records of account of the Corporation.
(b) The Chief Financial officer shall deposit all monies and other
valuables in the name and to the credit of the Corporation with such
depositories as may be designated from time to time by resolution of the Board
of Directors. He shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall render to the Chief Executive officer and the
Board of Directors, whenever they request it, an account of all of his
transactions as Chief Financial officer and of the financial condition of the
Corporation, and shall have such other powers and perform such other duties as
may be prescribed from time to time by the Board of Directors or as the Chief
Executive Officer may from time to time delegate.
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ARTICLE 8
INDEMNIFICATION
8.1 Definitions. For purposes of this article, the following terms shall
have the meanings specified:
(a) "agent" shall include any person who is or was a director,
officer, employee, or other agent of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee, or agent of another
foreign or domestic corporation, partnership, joint venture, trust, or other
enterprise, or was a director, officer, employee, or agent of a foreign or
domestic corporation which was a predecessor corporation of the Corporation or
of another enterprise at the request of such predecessor corporation;
(b) "proceeding" shall include any threatened, pending, or completed
action or proceeding, whether civil, criminal, administrative, or investigative;
and "expenses" shall include, without limitation, attorneys, fees and any
expenses of establishing a right to indemnification under section 8.4 or section
8.5(c) of this article.
8.2 Indemnification in Actions by Third Parties. The Corporation shall
have power to indemnify any person who was or is a party or is threatened to be
made a party to any proceeding (other than an action by or in the right of the
Corporation) by reason of the fact that such person is or was an agent of the
corporation, against expenses, judgments, fines, settlements, and other amounts
actually and reasonably incurred in connection with such proceeding if such
person acted in good faith and in a manner such person reasonably believed to be
in the best interests of the Corporation and, in the case of a criminal
proceeding, had no reasonable cause to believe the conduct of such person was
unlawful. The termination of any proceeding by judgment, order, settlement,
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 the person reasonably believed to be in the best interests of the
Corporation or that the person had reasonable cause to believe that the person's
conduct was unlawful.
8.3 Indemnification in Actions by or in the Right of the Corporation.
The Corporation shall have power to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending, or completed
action by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that such person is or was an agent of the Corporation,
against expenses actually and reasonably incurred by such person in connection
with the defense or settlement of such action if such person acted in good
faith, in a manner such person believed to be in the best interests of the
Corporation and its shareholders Notwithstanding the foregoing, no
indemnification shall be made under this section:
(a) in respect of any claim, issue, or matter as to which such
person shall have been adjudged to be liable to the Corporation in the
performance of such Person's duty to the Corporation, unless and only to the
extent that the court in which such action was brought shall determine upon
application that, in view of all the circumstances of the case, such action was
brought shall determine upon application that, in view of all the circumstances
of the case, such
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person is fairly and reasonably entitled to indemnity for the expenses which
such court shall determine;
(b) of amounts paid in settling or otherwise disposing of a
threatened or pending action, without court approval; or
(c) of expenses incurred in defending a pending action which is
settled or otherwise disposed of without court approval.
8.4 Indemnification Against Expenses. To the extent that an agent of the
Corporation has been successful on the merits in defense of any proceeding
referred to in section 8.2 or 8.3 of this article or in defense of any claim,
issue, or matter therein, the agent shall be indemnified against expenses
actually and reasonably incurred by the agent in connection therewith.
8.5 Required Determinations. Except as provided in section 8.4 of this
article, any indemnification under this article shall be made by the Corporation
only if authorized in the specific case, upon a determination that
indemnification of the agent is proper in the circumstances because the agent
has met the applicable standard of conduct set forth in sections 8.2 or 8.3 of
this article by:
(a) a majority vote of a quorum consisting of directors who are not
parties to such proceeding;
(b) if such a quorum of directors is not available, by independent
legal counsel in a written opinion;
(c) approval of the shareholders, with the shares owned by the
person to be indemnified not being entitled to vote thereon; or
(d) the court in which such proceeding is or was pending upon
application made by the Corporation or the agent or the attorney or other person
rendering services in connection with the defense, whether or not such
application by the agent, attorney, or other person is opposed by the
Corporation.
8.6 Advance of Expenses. Expenses incurred in defending any proceeding
may be advanced by the Corporation prior to the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of the agent to repay
that amount if it shall be determined ultimately that the agent is not entitled
to be indemnified as authorized in this article.
8.7 Other Indemnification. The indemnification provided by these bylaws
shall not be exclusive of any other rights to which those seeking
indemnification may be entitled under any agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in an official capacity
and as to action in another capacity while holding such office, to the extent
such additional rights between indemnification are authorized in the Articles of
Incorporation.
8.8 Forms of Indemnification Not Permitted. No indemnification or
advance shall be made under this article, except as provided in section 8.4 or
section 8.5(c) in any circumstance where it appears:
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(a) that it would be inconsistent with a provision of the Articles
of Incorporation, these Bylaws, a resolution of the shareholders or an agreement
in effect at the time of the accrual of the alleged cause of action asserted in
the proceeding in which the expenses were incurred or other amounts were paid,
which prohibits or otherwise limits indemnification; or
(b) that it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
8.9 Insurance. The Corporation shall have power to purchase and maintain
insurance on behalf of any agent of the Corporation against any liability
asserted against or incurred by the agent in such capacity or arising out of the
agent's status as such whether or not the Corporation would have the power to
indemnify the agent against such liability under the provisions of this article.
8.10 Nonapplicability to Fiduciaries of Employee Benefit Plans. This
article does not apply to any proceeding against any trustee, investment
manager, or other fiduciary of an employee benefit plan in such person's
capacity as such, even though such person may also be an agent of the
Corporation as defined in section 8.1 of this article. The Corporation shall
have power to indemnify such trustee, investment manager or other fiduciary to
the extent permitted by Arizona law.
ARTICLE 9
RECORDS AND REPORTS
9.1 Minute Book - Maintenance and Inspection. The Corporation shall keep
or cause to be kept in written form at its principal executive office or such
other place as the Board of Directors may order a minute book which shall
contain a record of all actions by its shareholders, the Board of Directors,
including the following information: the time, date, and place of each meeting;
whether a meeting is regular or special and, if special, how called; the manner
of giving notice of each meeting and a copy thereof; the names of those present
at each meeting of the Board of Directors or committees thereof; the number of
shares present or represented at each meeting of the shareholders; the
proceedings of all meetings; any written waivers or notice, consents to the
holding of a meeting, or approvals of the minutes thereof; and written consents
for any action without a meeting.
9.2 Share Register - Maintenance and Inspection. The Corporation shall
keep or cause to be kept at its principal executive office, or, if so provided
by resolution of the Board of Directors, at the Corporation's transfer agent or
registrar, k a share register, or a duplicate share register, which shall
contain the names of the shareholders and their addresses, the number of classes
of shares held by each, and the number and date of cancellation of every
certificate surrendered for cancellation.
9.3 Books and Records of Account - Maintenance and Inspection. The
Corporation shall keep or cause to be kept at its principal executive office or
such other place as the Board of Directors may order, adequate and correct books
and records of account.
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9.4 Bylaws - Maintenance and Inspection. The Corporation shall keep at
its principal executive office or, in the absence of such office in the State of
Arizona, at its principal business office in that state, the original or a copy
of these Bylaws as amended to date.
9.5 Annual Report to Shareholders. Unless required by Arizona law, the
annual report to the shareholders is expressly dispensed with, but nothing
herein shall be interpreted as prohibiting the Board of Directors from issuing
annual or other periodic reports to the shareholders of the Corporation at the
discretion of the Board of Directors.
ARTICLE 10
MISCELLANEOUS GENERAL CORPORATE MATTERS
10.1 Checks, Drafts, etc.. All checks, drafts, or other orders for
payment of money, all notes or other evidences of indebtedness, and any
assignments or endorsements thereof, 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 of
Directors.
10.2 Contracts, etc. - How Executed. The Board of Directors may except as
otherwise provided in these Bylaws, authorize any officer or officers or agent
or agents to enter into any contract or execute any instrument in the name of
and on behalf of the Corporation, and such authority may be general or confined
to specific instances; and, unless so authorized or ratified by the Board of
Directors, no officer, employee, or other agent shall have any power or
authority to bind the Corporation by any contract or engagement, or to pledge
its credit, or to render it liable for any purpose or to any amount.
10.3 Certificates of Stock. All certificates shall be signed in the name
of the Corporation by the Chairman of the Board or Chief Executive officer or
the President or a vice president and by the Chief Financial officer or an
assistant chief financial officer or the Secretary or an assistant secretary,
certifying the number of shares and the class or series thereof owned by the
shareholder. Any or all of the signatures on a certificate may be by facsimile
signature. In case any officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent, or registrar before such certificate is
issued, it may he issued by the Corporation with the same effect as if such
person were an officer, transfer agent, or registrar at the date of issue.
10.4 Lost Certificates. Except as provided in this section no new
certificate for shares shall be issued in lieu of an old certificate unless the
latter is surrendered to the Corporation and cancelled at the same time. The
Board of Directors may in case any share certificate or certificate for any
other security is lost, stolen, or destroyed, authorize the issuance of a new
certificate in lieu thereof, upon such terms and conditions as the Board may
require, including provision for indemnification of the Corporation secured by a
bond or other adequate security sufficient to protect the Corporation against
any claim that may be made against it, including any expense or liability, on
account of the alleged, loss, theft, or destruction of such certificate or the
issuance of such new certificate.
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10.5 Representation of Shares of Other Corporations. Any person
designated by resolution of the Board of Directors or, in the absence of such
designation, the Chairman of the Board, Chief Executive Officer, the President,
any vice president, the Secretary, or any other person authorized by any of the
foregoing, is authorized to vote on behalf of the Corporation any and all shares
of any other corporation or corporations, foreign or domestic, owned by the
Corporation.
10.6 Construction of Definitions. Unless the context otherwise requires,
the general provisions, rules of construction and definitions contained in
Arizona law shall govern the construction of these Bylaws.
ARTICLE 11
AMENDMENTS
Except as otherwise provided in these Bylaws, new bylaws may be adopted or
these Bylaws may be amended or repealed by the Board of Directors or by the
affirmative vote of a majority of the outstanding shares entitled to vote;
provided, however, that a bylaw or amendment thereof specifying or changing a
fixed number of directors or the maximum or minimum number of directors, or
changing from a fixed to a variable number of directors of vice versa, may only
be adopted by approval of the outstanding shares.
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