BY-LAWS OF
B-SQUARE, INC.
ARTICLE I.
OFFICES
1.01. The Registered Office and Registered Agent. The registered office of
the Corporation shall be at 800 W. Airport Freeway, Suite 1020, L.B. 6086,
Irving, Texas 75062. The name of the Registered Agent at such address is W. T.
"Skip" Leake.
1.02. The Principal Place of Business of the Corporation shall be
determined by the Board of Directors.
1.03. Other Offices. The Corporation may also have offices at other places
in or out of the State of Incorporation as the Board of Directors may determine
or as the business of the Corporation requires.
ARTICLE II.
SHAREHOLDERS
2.01. Place of Meetings. Meetings of Shareholders shall be held at the time
and place, in or out of the State of Incorporation stated in the Notice of the
Meeting or in a Waiver of Notice.
2.02. Annual Meetings. An Annual Meeting of the Shareholders of shall be
held each year on a date set by the Board of Directors following the close of
the fiscal year. If the day is a legal holiday, then the meeting shall be on the
next business day following. At the meeting, the Shareholders shall elect
directors and transact such other business as may properly be brought before the
meeting.
2.03. Voting List. At least ten (10) days before each meeting of the
Shareholders, a complete list of the Shareholders entitled to vote at the
meeting, arranged in alphabetical order, with the address of each and the number
of voting shares held by each, shall be prepared by the officer or agent having
charge of the stock transfer books. 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 inspection by any Shareholders at any time
during the whole time thereof, and shall be subject to the inspection of any
Shareholder during the whole time of the meeting.
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2.04. Special Meetings. Special meetings of the Shareholders for any
purpose or purposes, unless otherwise prescribed by statute or by Articles of
Incorporation, or by these By-Laws, may be called by the President, the Board of
Directors, or the holders of not less than One-Tenth (1/10) of all of the shares
entitled to vote at the meetings. Business transacted at the special meeting
shall be confined to the purposes stated in the Notice of the Meeting.
2.05. Notice. Written or printed notice stating the place, the 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 delivered not less than ten (10) days nor
more than fifty (50) days before the date of the meeting, either personally or
by mail, by or at the direction of the President, Secretary or the officer or
person calling the meeting, to each Shareholder of record entitled to vote at
the meeting. If mailed, such notice shall be deemed to be delivered at his
address as it appears on the stock transfer books of the Corporation, with
postage thereon prepaid. (See also By-Laws 5.01 and 5.02.)
2.06. Quorum. The holders of fifty one percent (51%) of the shares issued
and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall be requisite and shall constitute a quorum at meetings of the
Shareholders for the transaction of business except as otherwise provided by
statute, by the Articles of Incorporation, or by these By-Laws. If a quorum is
not present or represented at a meeting of the Shareholders, represented by
proxy, the President shall have power to adjourn the meeting from time-to-time
without notice other than announcement at the meeting until a quorum is present
or represented, then any business may be transacted which might have been
transacted at the meeting as originally notified.
2.07. Majority Vote; Withdrawal of Quorum. When a quorum is present at a
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 on which, by expressed
provision of the statutes, the Articles of Incorporation, or these By-Laws, a
higher vote is required in which case the expressed provision shall govern. The
Shareholders present at a duly constituted meeting may continue to transact
business until adjournment, despite the withdrawal of enough Shareholders to
leave less than a quorum.
2.08. Method of Voting. Each outstanding share, regardless of class shall
be entitled to one vote on each matter submitted to a vote at a meeting of
Shareholders, except to the extent of the voting rights of the shares of any
class or classes limited or denoted by the Articles of Incorporation. At any
meeting of the Shareholders, every Shareholder having the right to vote may vote
either in person, or by proxy executed in
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writing by the Shareholder or by his duly authorized attorney-in-fact. No proxy
shall be valid after eleven (11) months from the date of its execution, unless
otherwise provided in the proxy. Each proxy shall be revocable unless expressly
provided therein to be irrevocable by law. Each proxy shall be filed with the
Secretary of the Corporation prior to or at the time of the meeting. Voting for
Directors shall be in accordance with Section 3.06 of these By-Laws. Any vote
may be taken by voice or by show of hands unless someone entitled to vote
objects, in which case written ballots shall be used.
2.09. Record Date: Closing Transfer Books. The Board of Directors may fix
in advance a record date for the purpose of determining Shareholders entitled to
notice of or to vote at a meeting of the Shareholders, the record date to be not
less than ten (10) nor more than fifty (50) days prior to the meeting; or the
Board of Directors may close the Stock Transfer Books for such purpose for a
period of not less than ten (10) nor more than fifty (50) days prior to such
meeting. In the absence of any action by the Board of Directors, the date upon
which the Notice of the Meeting is mailed shall be the record date.
2.10. Action Without Meeting. Any action required by statute to be taken at
a meeting of the Shareholders, or any action which may be taken at a meeting of
the Shareholders, may be taken without a meeting if a consent in writing,
setting forth the action so taken, shall be signed by all the Shareholders
entitled to vote with respect to the subject matter thereof and such consent
shall have the same force and effect as a unanimous vote of the Shareholders.
The consent may be in more than one (1) counter part so long as each Shareholder
signs one of the counter parts. The signed consent, or a signed copy shall be
placed in the minute book.
2.11. Telephone and Similar Meetings. Shareholders, Directors and Committee
Members may participate in and hold a meeting by means of conference telephone
or similar communications equipment by means of which all persons participating
in the meeting can hear each other. Participation in such a meeting shall
constitute presence in person at the meeting, except where a person participates
in a meeting for the express purpose of objecting to the transaction of any
business on the grounds that the meeting is not lawfully called or convened.
2.12. Order of Business at Meetings. The order of business at Annual
Meetings and so far as practicable at other meetings of Shareholders shall be as
follows unless changed by the Board of Directors:
(1) Call to Order
(2) Proof of due Notice of Meeting
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(3) Determination of Quorum and Examination of Proxies
(4) Announcement of availability of voting list (See By-Law 2.03.)
(5) Announcement of distribution of Annual Statements (See By-Law
8.03.)
(6) Reading and disposing of Minutes of last meeting of Shareholders
(7) Reports of Officers and Committees
(8) Appointment of Voting Inspectors
(9) Unfinished Business
(10) New Business
(11) Nomination of Directors
(12) Opening of Polls for Voting
(13) Recess
(14) Reconvening; Closing of Polls
(15) Report of Voting Inspectors
(16) Other Business
(17) Adjournment
ARTICLE III.
DIRECTORS
3.01. Management. The business and affairs of the Corporation shall be
managed by the Board of Directors who may exercise all such powers of the
Corporation and do all such lawful acts and things as are not (by statute or by
the Articles of Incorporation or by these By-Laws) directed or required to be
exercised or done by the Shareholders.
3.02. Qualification; Election; Term. The Board of Directors shall consist
of three (3) directors, whom need not be a Shareholder or resident of any
particular state. The Director shall be elected at the Annual Meeting of the
Shareholders, except as provided in By-Laws 3.03 and 3.05. Each Director elected
shall hold office until his successor shall be elected and shall qualify.
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3.03. Change in Number. The number of Directors may be increased or
decreased from time-to-time by amendment to these By-Laws, but no decrease shall
have the effect of shortening the term of any incumbent Directors. Any
Directorship to be filled by reason of an increase in the number of Directors
shall be filled by election at an Annual Meeting or at a Special Meeting of
Shareholders called for that purpose.
3.04. Removal. Any Director may be removed either for or without cause at
any Special or Annual Meeting of Shareholders, by the affirmative vote of a
majority in number of shares of the Shareholders present, in person or by proxy,
at such meeting and entitled to vote for the election of such Director if notice
of intention to act upon such matter shall have been given in the Notice calling
such meeting.
3.05. Vacancies. Any vacancy occurring in the Board may be filled by an
affirmative vote of a majority of the remaining Directors though less than a
quorum of the Board of the remaining Directors elected to fill a vacancy shall
be elected for the unexpired term of his predecessor in office.
3.06. Election of Directors. Directors shall be elected by majority vote.
3.07. Place of Meeting. Meetings of the Board of Directors, regular or
special, may be held in or out of the State of Incorporation.
3.08. First Meeting. The first meeting of a newly elected Board shall be
held without further notice immediately following the Annual Meeting of
Shareholders, and at the same place, unless by unanimous consent of the
Directors then elected and serving, the time and place is changed.
3.09. Regular Meetings. Regular meetings of the Board of Directors may be
held without notice at such time and place as shall from time-to-time be
determined by the Board.
3.10. Special Meetings. Special meetings of the Board of Directors may be
called by the President on three (3) day's notice to each Director, either
personally or by mail or by telegram. Special meetings shall be called by the
President or Secretary in like manner and on like notice on the written request
of one (1) Director. Except as otherwise expressly provided by the statute,
Articles of Incorporation, or these By-Laws, neither the business to be
transacted at, nor the purpose of, any Special meeting need be specified in a
Notice or Waiver of Notice. (See also By-Laws 5.01 and 5.02.)
3.11. Quorum; Majority Vote. At meetings of the Board of Directors, a
majority of the number of Directors fixed by these By-Laws shall constitute a
quorum for the transaction of
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business. The act of a majority of the Directors present at a meeting which a
quorum is present shall be the act of the Board of Directors, except as
otherwise specifically provided by statutes, the Articles of Incorporation, or
these By-Laws. If a quorum is not present at a meeting of the Board of
Directors, the Directors present may adjourn the meeting from time-to-time,
without notice other than an announcement at the meeting, until a quorum is
present.
3.12. Compensation. By resolution of the Board of Directors, the Directors
may be paid their expenses, if any, of attendance at each meeting of the Board
of Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or a stated salary as Director. No such payment shall
preclude any Director from serving the Corporation in any other capacity and
receiving compensation therefore. Members of the Executive Committee or of
Special or Standing Committees may, by resolution of the Board of Directors, be
allowed like compensation for attending committee meetings.
3.13. Procedure. The board of Directors shall keep regular minutes of its
proceedings. The minutes shall be placed in the minute book of the Corporation.
3.14. Action Without Meeting. Any action required or permitted to be taken
at a meeting of Directors may be taken without a meeting if a consent in writing
setting forth the actions so taken, is signed by all of the members of the Board
of Directors. Such consent shall have the same force and effect as a unanimous
vote at a meeting. The signed consent, or a signed copy, shall be placed in the
minute book. The consent may be in more than one counter part so long as each
Director signs one of the counterparts.
3.15. Telephone and Similar Meetings. (Same as By-Law 2.11.)
3.16. Interested Directors, Officers, Shareholders.
(A) Validity. If Paragraph (B) is satisfied, no contract or other
transaction between the Corporation and any of its Directors,
Officers of Security Holders, or any Corporation or firm in which
any of them are directly or indirectly interested, shall be
invalid solely because of this relationship or because of the
presence of the Director, Officer or Security Holder at the
meeting authorizing the contract or transaction, or his
participation or vote in the meeting or authorization.
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(B) Disclosure, Approval, Fairness.
(1) Material facts of the relationship or interest of each such
Director, Officer or Security Holder are known or disclosed:
(a) to the Board of Directors and it nevertheless authorizes
or ratifies the contract or transaction by a majority of the
Directors present each such interested Director to be counted to
be determined whether a quorum is present, but not in calculating
the majority necessary to carry the vote; or
(b) to the Shareholders and they nevertheless authorize or
ratify the contract or transaction by all of the shares present,
each such interested person to be counted for quorum and voting
purposes; or
(2) The contract or transaction is fair to the Corporation as of
the time it is authorized or ratified by the Board of Directors
or the Shareholders.
(C) Non-Exclusive. This provision shall not be construed to
invalidate a contract or transaction which would be valid in the
absence of this provision.
ARTICLE IV
EXECUTIVE COMMITTEE
4.01. Designation. The Board of Directors may, by resolution adopted by a
unanimous decision of the Board, designate an Executive Committee.
4.02. Number; Qualification; Term. The Executive Committee shall consist of
one or more Directors, one of whom shall be the President. The Executive
Committee shall serve at the pleasure of the Board of Directors.
4.03. Authority. The Executive Committee, to the extent provided in such
resolution, shall have and may exercise all of the authority of the Board of
Directors in the management of the business and the affairs of the Corporation,
including authority over the use of the Corporate Seal. However, the Executive
Committee shall not have the authority of the Board in reference to:
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(A) Amending the Articles of Incorporation;
(B) Approving a plan of merger or consolidation;
(C) Recommending to the Shareholders the sale, lease or exchange of
all or substantially all of the property and assets of the
Corporation otherwise than in the usual or regular course of its
business;
(D) Recommending to the Shareholders a voluntary dissolution of the
Corporation or a revocation thereof;
(E) Amending, altering, or repealing these By-Laws or adopting new
By-Laws;
(F) Filling vacancies in or removing members of the Board of
Directors or of any Committee appointed by the Board of
Directors;
(G) Electing or removing Officers or members of such Committee;
(H) Fixing the compensation of any member of any such Committee;
(I) Altering or repealing any resolution of the Board of Directors
which by its terms provides that it shall not be so amenable or
repealable;
(J) Declaring a dividend; or
(K) Authorizing the issuance of shares of stock of the Corporation.
4.04. Change in Number. The number of Executive Committee members may be
increased or decreased from time-to-time by resolution adopted by a majority of
the whole Board of Directors.
4.05. Removal. Any member of the Executive Committee may be removed by the
Board of Directors by the affirmative vote of a majority of the whole Board,
whenever in its judgment the best interest of the Corporation will be served
thereby.
4.06. Vacancies. A vacancy occurring in the Executive Committee (by death,
resignation, removal or otherwise) may be filled by the Board of Directors in
the manner provided for original designation in By-Law 4.01.
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4.07. Meetings. Time, place and notice (if any) of Executive Committee
Meetings shall be determined by the Executive Committee. (See also By-Laws 5.01
and 5.02.)
4.08. Quorum; Majority Vote. At meetings of the Executive Committee, a
majority of the number of members designated by the Board of Directors shall
constitute a quorum for the transaction of business. The act of a majority of
the number of members present at any meeting at which a quorum is present shall
be the act of the Executive Committee, except as otherwise specifically provided
by statute, the Articles of Incorporation, or these By-Laws. If a quorum is not
present at a meeting of the Executive Committee, the members present may adjourn
the meeting from time-to-time, without notice other than an announcement at the
meeting, until a quorum is present.
4.09. Compensation. (Same as By-Law 3.12.)
4.10. Procedure. The Executive Committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required. The
minutes of the proceedings of the Executive Committee shall be placed in the
minute book of the Corporation.
4.11. Action Without Meeting. Any action required or permitted to be taken
at a meeting of the Executive Committee may be taken without a meeting if a
consent in writing, setting forth the action so taken, is signed by all the
members of the Executive Committee. Such consent shall have the same force and
effect as a unanimous vote at a meeting. The signed consent, or a signed copy,
shall be placed in the minute book.
4.12. Telephone and Similar Meetings. (Same as By-Law 2.11.)
4.13. Responsibility. The designation of an Executive Committee and the
delegation of authority to it shall not operate to relieve the Board of
Directors, or any member thereof, or any responsibility imposed upon it or him
by law.
ARTICLE V.
NOTICE
5.01. Method. Whenever by statute, the Articles of Incorporation, these
By-Laws, or otherwise, notice is required to be given to a Director, Committee
Member, or Security Holder, and no provision is made as to how the notice shall
be given, it shall not be construed to mean personal notice, but any such notice
may be given:
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(A) in writing, by mail, postage prepaid, addressed to the Director,
Committee Member, or Security Holder at the address appearing on
the books of the Corporation; or
(B) in any other method permitted by law.
Any notice required or permitted to be given by mail shall be deemed given at
the time when the same is thus deposited in the United Stated mails.
5.02. Waiver. Whenever, by statute, the Articles of Incorporation or these
By-Laws, notice is required to be given to a Security Holder,
Committee Member, or Director, a Waiver to such Notice, whether before
or after the time stated in such notice, shall be equivalent to the
giving of such notice. Attendance at a meeting shall constitute a
Waiver of Notice of such meeting, except where a person attends for
the express purpose of objecting to the transaction of any business on
the grounds that the meeting is not lawfully called or convened.
ARTICLE VI.
OFFICERS AND AGENTS
6.01. Number, Qualifications; Elections; Term.
(A) The Corporation shall have a President, Vice-President and
Secretary and such other Officers and agents as the Board of
Directors may deem necessary.
(B) No Officer or Agent need be a Shareholder, a Director or a
resident of the State of Incorporation.
(C) Officers named by By-Law 6.01(A)(l) shall be elected by the Board
of Directors on the expiration of an officer's term or whenever a
vacancy exists. Officers and agents named by By-Law 6.01(A)(2)
may be elected by the Board at any meeting.
(D) Unless otherwise specified by the Board at the time of election
or appointment, or in an employment contract approved by the
Board, each Officer's and Agent's term shall end at the first
meeting of Directors after the next Annual meeting of
Shareholders. He shall serve until the end of his term or, if
earlier, his death, resignation, or removal.
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(E) Any two or more offices may be held by the same person.
6.02. Removal. Any Officer or Agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in its judgment the
best interest of the Corporation will be served thereby. Such removal shall be
without prejudice to the contract right, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create
contract rights.
6.03. Vacancies. Any vacancy occurring in any office of the Corporation (by
death, resignation, removal or otherwise) may be filled by the Board of
Directors.
6.04. Authority. Officers and agents shall have such authority and perform
such duties in the management by the Corporation as are provided in these
By-Laws or as may be determined by resolution of the Board of Directors not
inconsistent with these By-Laws.
6.05. Compensation. The compensation of Officer and Agents shall be fixed
from time-to-time by the Board of Directors.
6.06. President. The President shall be the Chief Executive officer of the
Corporation; he shall preside at all meetings of the Shareholders and the Board
of Directors, shall have general and active management of the business and
affairs of the Corporation, and shall see that all orders and resolutions of the
Board are carried into effect. He shall perform such other duties and have such
other authority and powers as the Board of Directors may from time-to-time
prescribe.
6.07. Vice-President. The Vice-Presidents, in order of their seniority,
unless otherwise determined by the Board of Directors, shall, in the absence or
disability of the President, perform the duties and have the authority and
exercise the powers of the President. They shall perform such other duties and
have such other authority and powers as the Board of Directors may from
time-to-time prescribe or as the President from time-to-time delegate.
6.08. Secretary.
(A) The Secretary shall attend all meetings of the Board of Directors
and all meetings of the Shareholders and record all votes,
actions and the minutes of all proceedings in a book to be kept
for that purpose and shall perform like duties for Executive and
other Committees when required.
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(B) He shall give, or cause to be given, notice of all meetings of
the Shareholders and special meetings of the Board of Directors.
(C) He shall keep in safe custody the seal of the Corporation and,
when authorized by the Board of Directors of the Executive
Committee, affix it to any instrument requiring it. When so
affixed, it shall be attested by his signature or by the
signature of the Treasurer or an Assistant Secretary.
(D) He shall be under the supervision of the President. He shall
perform such other duties and have such other authority and
powers as the Board of Directors may from time-to-time prescribe
or as the President may from time-to-time delegate.
6.09. Assistant Secretary. The Assistant Secretary in the order of their
seniority, unless otherwise determined by the Board of Directors shall, in the
absence or disability of the Secretary, perform the duties and have the
authority and exercise the powers of the Secretary. They shall perform such
other duties and have such other powers as the Board of Directors may from
time-to-time prescribe or as the President may from time-to-time delegate.
6.10. Treasurer.
(A) The Treasurer shall have the custody of the Corporate funds and
securities, shall keep full and accurate accounts of receipts and
disbursement of the Corporation, and shall deposit all funds and
other valuables in the name and to the credit of the Corporation
in depositories designated by the Board of Directors.
(B) He shall disburse the funds of the Corporation as ordered by the
Board of Directors, and prepare financial statements as they
direct.
(C) If required by the Board of Directors, he shall give the
Corporation a bond (in such form, in such sum, and with such
surety or sureties as shall be satisfactory to the Board) for the
faithful performances of the duties of his office and for the
restoration to the Corporation, in case of his death,
resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in
his
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possession or under his control belonging to the Corporation.
(D) He shall perform such other duties and have such other authority
and powers as the Board of Directors may from time-to-time
prescribe or as the President may from time-to-time delegate.
6.11. Assistant Treasurer. The Assistant Treasurer, in the order of their
seniority, unless otherwise determined by the Board of Directors, shall, in the
absence or disability of the Treasurer, perform the duties and have the
authority and exercise the powers of the Treasurer. They shall perform such
other duties and have such other powers as the Board of Directors from
time-to-time prescribe or the President may from time-to-time delegate.
6.12. Combined Offices. If by the election and appointment of the Board of
Directors, two or more offices are combined and delegated to the same person,
that said Officer shall perform such duties as prescribed by these ByLaws for
each office that he may hold and shall remain responsible for the duties of each
office which he thereby holds.
ARTICLE VII.
CERTIFICATE AND SHAREHOLDERS
7.01. Certificates. Certificates in the form determined by the Board of
Directors shall be delivered representing all shares to which Shareholders are
entitled. Certificates shall be consecutively numbered and shall be entered in
the books of the Corporation as they are issued. Each certificate shall state on
its face the holder's name, the number and class of shares, the par value of
shares or a statement that such shares are without par value, and such other
matters as may be required by law. It shall be signed by the President and
Secretary and such other Officer or Officers as the Board of Directors shall
designate, and may be sealed with the seal of the Corporation or a facsimile
thereof. If a certificate is registered by a registrar (either of which is other
than the Corporation or an employee of the Corporation), the signature of any
Officer may be facsimile.
7.02. Issuance. Shares (both treasury and authorized, but unissued) may be
issued for such consideration (not less than par value) and to such persons as
the Board of Directors may determine from time-to-time. Shares may not be issued
until the full amount of the consideration, fixed as provided by law, has been
paid.
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7.03 Payment for Shares.
(A) Kind. The consideration for the issuance of shares shall consist
of money paid, labor done (including services actually performed
for the Corporation) or property (tangible or intangible)
actually received. Neither promissory notes nor the promise of
future services shall constitute payment for shares.
(B) Valuation. In the absence of fraud in the transaction, the
judgment of the Board of Directors as to the value of
consideration received shall be conclusive.
(C) Effect. When consideration, fixed as provided by law, has been
paid, the shares shall be deemed to have been issued and shall be
considered fully paid and nonassessable.
(D) Allocation of Consideration. The consideration received for
shares shall be allocated by the Board of Directors, in
accordance with law, between stated capital and capital surplus
accounts.
7.04. Subscriptions. Unless otherwise provided in a subscription agreement,
subscriptions for shares, whether made before or after organization of a
Corporation, shall be paid in full at such time or in such installments and at
such time as shall be determined by the Board of Directors. Any call made by the
Board of Directors for payment of subscriptions shall be uniform as to all
shares to the same series. In case of default in the payment on any installment
or call when payment is due, the Corporation may proceed to collect the amount
due in the same manner as any debt due to the Corporation.
7.05. Lien. For any indebtedness of a Shareholder to the Corporation, the
Corporation shall have a first and prior lien on all shares of its stock owned
by him and on all dividends for other distributions declared thereon.
7.06. Lost, Stolen or Destroyed Certificates. The Corporation shall issue a
new certificate in place of any certificates for shares previously issued if the
registered owner of the certificate:
(A) Claim. Makes proof in affidavit form that it has been lost,
destroyed, or wrongfully taken, and
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(B) Timely Request. Request the issuance of a new certificate before
the Corporation has notice that the certificate has been acquired
by a purchaser for value in good faith and without notice of an
adverse claim; and
(C) Bond. Gives a bond in such form, and with such surety or
sureties, with fixed or open penalty, as the Corporation may
direct, to indemnify the Corporation (and its transfer agent and
registrar, if any) against any claim that may be made on account
of the alleged loss, destruction, or theft of the certificate;
and
(D) Other Requirements. Satisfies any other reasonable requirements
imposed by the Corporation.
When a certificate has been lost, apparently destroyed or wrongfully taken, and
the holder of record fails to notify the Corporation within a reasonable time
after he has notice of it, and the Corporation registers a transfer of the
shares represented by the certificate before receiving such notification, the
holder of record is precluded from making any claim against the Corporation for
the transfer or for a new certificate.
7.07. Registration of Transfer. The Corporation shall register the transfer
of a certificate for shares presented to it for transfer if:
(A) Endorsement. The certificate is properly endorsed by the
registered owner or by his duly authorized attorney; and
(B) Guarantee Effectiveness of Signature. The signature of such
person has been guaranteed by a national banking association or a
member of the New York Stock Exchange, and reasonable assurance
is given that such endorsements are effective; and
(C) Adverse Claims. The Corporation has no notice of an adverse claim
or has discharged any duty to inquire into such a claim; and
(D) Collection of Taxes. Any applicable law relating to the
collection of taxes has been complied with.
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7.08. Registered Owner. Prior to due presentation for registration of
transfer of a certificate for shares, the Corporation may treat the registered
owner as the person exclusively entitled to vote, to receive notices and
otherwise to all rights and powers of a Shareholder.
ARTICLE VIII.
MISCELLANEOUS PROVISIONS
8.01. Dividends and Reserves.
(A) Declaration in Payment. Subject to statute and the Articles of
Incorporation, dividends may be declared by the Board of
Directors at any regular or special meeting and may be paid in
cash, or in shares of the Corporation. The declaration of payment
shall be at the discretion of the Board of Directors.
(B) Record Date. The Board of Directors may fix in advance a record
date for the purpose of determining Shareholders entitled to
receive payment of any dividend, the record date to be not more
than fifty (50) days prior to the payment date of such dividend,
or the Board of Directors may close the stock transfer books for
such purpose for a period of not more than fifty (50) days prior
to payment date of such dividend. In the absence of any action by
the Board of Directors, the date upon which the Board of
Directors adopts the resolution declaring the dividend shall be
the record date.
(C) Reserves. By resolution the Board of Directors may create such
reserve or reserves out of the earned surplus of the Corporation
as the Directors from time-to-time, in their discretion, think
proper to provide for contingencies or to equalize dividends, or
to repair or maintain any property of the Corporation, or for any
other purpose they think beneficial to the Corporation. The Board
of Directors may modify or abolish any such reserve in the manner
in which it was created.
8.02. Books and Records. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
Shareholders and Board of Directors, and shall keep at its registered office or
principal place of business, or at the office of its transfer agent or
PAGE 16
registrar, a record of its Shareholders, giving the names and addresses of all
Shareholders and the number and class of shares held by each.
8.03. Annual Statement. The Board of Directors shall mail to each
Shareholder of record, at least ten (10) days before each Annual Meeting, a full
and clear statement of the business and condition of the Corporation, including
a reasonable detailed Balance Sheet, Income Statement, Surplus Statement, and
Statement of Changes in Financial Position, for the last year and for the prior
fiscal year, all prepared in conformity with generally accepted accounting
principals applied on a consistent basis. These said statements are to be
certified by independent public accountants appointed by the Board of Directors
or Shareholders.
8.04. Checks and Notes. Checks, and demands for money of the Corporation
shall be signed by an officer of the Corporation or other persons designated
from time-to-time by the Board of Directors. The Corporation shall not execute
any note or incur any indebtedness without specific resolution passed by the
Board of Directors upon meeting for such purpose, and shall be signed by the
Officer so designated by the Board of Directors in such resolution.
8.05. Fiscal Year. The fiscal year or the Corporation shall be set by the
Board of Directors by resolution.
8.06. Seal. The Corporation (of which there may be one or more exemplers)
shall contain the name of the Corporation and the name of the State of
Incorporation. The seal may be used by impressing it or reproducing a facsimile
of it, or otherwise.
8.07. Indemnification. The Corporation shall indemnify the following:
(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, and 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 the person named in Paragraph (A) by
reason of his holding a position named in (A) (2), the
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Corporation shall indemnify him if he satisfies the standards in
Paragraph (C), for expenses (including attorneys' fees but
excluding amounts paid in settlement) actually and reasonably
incurred by him in connection with the defense or the settlement
of the suit.
(C) Standard---Derivative Suits. 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 was brought shall determine, upon application,
that despite the adjudication but in view of all the
circumstances, he is fairly and reasonably entitled to indemnify
for such expenses as the courts shall deem proper.
(D) Extent-Nonderivative Suits. In case of a suit, action or
proceeding, (whether civil, criminal, administrative or
investigative), other together hereafter referred to as a non-
derivative suit, against a person 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
non-derivative suit as:
(1) Expenses (including attorneys' fees),
(2) Amounts paid in settlement,
(3) Judgments, and
(4) Fines.
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(E) Standard-Nonderivative Suits. In case of a non-derivative 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 non-derivative suit, and in a manner he
reasonably believed to be in, or not opposed to, the best
interest 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 non-derivative suit by judgement,
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, 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 attorneys' fees) which may be subject to the
indemnification under Paragraphs (A) - (G) if:
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(1) The Board of Directors authorizes 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 by 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 provided by 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) Reports. Indemnification payments, advance payments, and
insurance purchases made under Paragraphs (A) - (J) 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.
8.08. Resignation. A Director, Committee Member, Officer, or agent may
resign by giving written notice to the President or the Secretary. The
resignation shall take effect at the time specified in it or immediately, if no
time is specified. Unless it is specified otherwise, a resignation takes effect
without being accepted.
8.09. Amendment of By-Laws.
(A) These By-Laws may be altered, amended, or repealed at any meeting
of the Board of Directors which a quorum is present, by the
majority vote of the Directors present at such meeting, provided
notice of the proposed alteration, amendment, or repeal is
contained in the Notice of the Meeting.
(B) These By-Laws may also be altered, amended or repealed at any
meeting of the Shareholders which a quorum is present or
represented, by a two thirds (2/3) vote of the holders of the
shares present or represented at the meeting and entitled to vote
thereat, provided notice of the proposed alteration, amendment,
or
PAGE 20
repeal is contained in the Notice of the Meeting.
8.10. Construction. Whenever the context so requires, the masculine shall
include the feminine and neuter, and the singular shall include the plural and
conversely. If any portion of these By-Laws shall be invalid or inoperative,
then, so far as reasonable and possible:
(A) The remainder of these By-Laws shall be considered valid and
operative, and
(B) Effect shall be given to the intent manifested by the portion
held invalid or inoperative.
8.11. Table of Contents; Headings. The table of contents and headings are
for organization, convenience and clarity. In interpreting these By-Laws, they
shall be subordinated in importance to the other written material.
8.12. Relation to Articles of Incorporation. The By-Laws are subject to,
and governed by, the Articles of Incorporation.
CERTIFICATE OF ORIGINAL BY-LAWS
These By-Laws of BSQUARE, INC. consisting of twenty one (21) pages, is one
and the same document as that presented to, considered, and adopted by the Board
of Directors at their First Meeting of the Corporation on the 8th of October,
1993.
/s/ Daniel L. Bechtel
----------------------------------------
DANIEL L. BECHTEL
President
(Seal)
l:2:l/sub:rm
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