EXHIBIT 3.2
BYLAWS
OF
MOBILE REACH INTERNATIONAL, INC.
ARTICLE I
OFFICES
1. Principal Office. The principal office of the Corporation
shall be located in Wake County, North Carolina or such other place as is
designated by the Board of Directors.
2. Registered Office. The registered office of the Corporation
required by law to be maintained in the State of Delaware may be, but need not
be, identical with the principal office.
3. Other Offices. The Corporation may have offices at such other
places, either within or without the State of Delaware, as the Board of
Directors may from time to time determine or as the affairs of the Corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
1. Place of Meetings. All meetings of stockholders shall be held
at the principal office of the Corporation or at such other place, either within
or without the State of Delaware, as shall be designated in the notice of the
meeting or agreed upon by the Board of Directors.
2. Annual Meeting. The annual meeting of the stockholders shall
be held at the principal office of the Corporation during the month of June of
each year, commencing in 2004, on any day in that month (except a Saturday,
Sunday or a legal holiday) and at such time as is determined by the Board of
Directors, for the purpose of electing Directors of the Corporation and for the
transaction of such other business as may be properly brought before the
meeting.
3. Substitute Annual Meeting. If the annual meeting shall not be
held on the day designated by these Bylaws, a substitute annual meeting may be
called in accordance with the provisions of Section 4 of this Article II. A
meeting so called shall be designated and treated for all purposes as the annual
meeting. The shares represented at such substitute annual meeting, either in
person or by proxy, and entitled to vote thereat, shall constitute a quorum for
the purpose of such meeting.
4. Special Meetings. Special meetings of the stockholders may be
called at any time by the President, the Secretary or the Board of Directors of
the Corporation, or by any stockholder pursuant to the written request of the
holders of not less than one-tenth (1/10) of all the shares entitled to vote at
the meeting.
5. Notice of Meetings. Except as otherwise required by statute or
the Certificate of Incorporation, written notice of each meeting of the
stockholders, whether annual or special, shall be served, either personally, by
mail or private carrier, or by facsimile, electronic mail or other electronic
means, upon each stockholder of record entitled to vote at such meeting, not
less than ten (10) nor more than sixty (60) days before the meeting. If mailed,
such notice shall be deemed to be delivered when deposited in the United States
mail addressed to the stockholder at his address as it appears on the records of
the Corporation, with postage thereon prepaid. Notice shall be sent by
facsimile, electronic mail or other electronic means only to stockholders who
have agreed to receive notice by electronic means and who have not revoked such
agreement. Notice of any meeting of stockholders shall state the place, date and
hour of the meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. The notice shall also state the means
of remote communication, if any, by which stockholders and proxy holders may be
deemed present in person and vote at such meeting. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who, in person
or by his authorized attorney, either before or after such meeting, shall waive
such notice in writing. Attendance of a stockholder at a meeting, either in
person or by proxy, shall itself constitute waiver of notice and waiver of any
and all objections to the place and time of the meeting and manner in which it
has been called or convened, except when a stockholder attends a meeting solely
for the purpose of stating, at the beginning of the meeting, any such objections
to the transaction of business. Notice of the time and place of any adjourned
meeting need not be given otherwise than by the announcement at the meeting at
which adjournment is taken, unless the adjournment is for more than thirty (30)
days or after the adjournment a new record date is set.
6. Voting Lists. At least ten (10) days before each meeting of
stockholders the Secretary of the Corporation shall prepare an alphabetical list
of the stockholders entitled to vote at such meeting or any adjournment thereof,
with the address of and number of shares held by each, which list shall be kept
on file at a location in the city where such meeting is to be held or at the
place where such meeting is to be held for a period of ten (10) days prior to
such meeting, and shall be subject to inspection by any stockholder at any time
during the usual business hours. This list shall also be produced and kept open
at the time and place of the meeting and shall be subject to inspection by any
stockholder during the whole time of the meeting.
7. Quorum.
(a) Unless otherwise provided by law, the holders of a
majority of the shares entitled to vote, represented in person or by proxy,
shall constitute a quorum at a meeting of stockholders. When a quorum is present
at the original meeting, any business which might have been transacted at the
original meeting may be transacted at an adjourned meeting, even when a quorum
is not present. In the absence of a quorum at the opening of any meeting of
stockholders, such meeting may be adjourned from time to time by the Board of
Directors or the vote of a majority of the shares voting on the motion to
adjourn, but no other business may be transacted until and unless a quorum is
present. If later a quorum is present at an adjourned meeting, then any business
may be transacted which might have been transacted at the original meeting.
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(b) The stockholders at a meeting at which a quorum is
present may continue to do business until adjournment, notwithstanding the
withdrawal of sufficient stockholders to leave less than a quorum.
8. Voting of Shares.
(a) Each outstanding share having voting rights shall be
entitled to one (1) vote on each matter submitted to a vote at a meeting of
stockholders.
(b) Except in the election of Directors, the vote of a
majority of the shares voted on any matter at a meeting of stockholders, duly
held and at which a quorum is present, shall be the act of the stockholders on
that matter, unless the vote by a greater number is required by law or by the
charter or Bylaws of the Corporation.
(c) Voting on all matters except the election of
Directors may be by voice vote or by a show of hands unless the holders of
one-tenth (1/10) of the shares represented at the meeting shall, prior to the
voting on any matter, demand a ballot vote on that particular matter.
(d) Shares of its own stock owned by the Corporation,
directly or indirectly, through a subsidiary or otherwise, shall not be voted
and shall not be counted in determining the total number of shares entitled to
vote; except that shares held in a fiduciary capacity may be voted and shall be
counted to the extent provided by law.
9. Proxies. Shares may be voted either in person or by one or
more agents authorized by a written proxy executed by the stockholder or by his
duly authorized attorney-in-fact. A proxy is not valid after the expiration of
thirty-six (36) months from the date of its execution, unless the person
executing it specifies therein the length of time for which it is to continue in
force, or limits its use to a particular meeting.
10. Inspectors of Election.
(a) Appointment of Inspectors of Election. In advance of
any meeting of stockholders, the Board of Directors may appoint any persons,
other than nominees for office, as inspectors of election to act at such meeting
or any adjournment thereof. If inspectors of election are not so appointed, the
chairman of any such meeting may appoint inspectors of election at the meeting.
The number of inspectors shall be either one or three. In case any 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.
(b) Duties of Inspectors. The inspectors 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 votes, 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 stockholders. The inspectors of election shall
perform their duties impartially, in good faith, to the best of their ability
and as expeditiously as is practical.
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(c) Vote of Inspectors. If there are three (3) inspectors
of election, the decision, act or certificate of a majority shall be effective
in all respects as the decision, act or certificate of all.
(d) Report of Inspectors. On request of the chairman of
the meeting, the inspectors shall make a report in writing of any challenge or
question or matter determined by them and shall execute a certificate of any
fact found by them. Any report or certificate made by them shall be a prima
facie evidence of the facts stated therein.
11. Informal Action by Stockholders.
(a) Any action required or permitted to be taken at any
annual or special meeting of the stockholders, 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, are signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted.
(b) Every written consent shall bear the date of
signature of each stockholder who signs the consent, and no consent shall be
effective to take the corporate action referred to in such consent unless,
within sixty (60) days of the earliest dated consent delivered to the
Corporation in the manner required in these Bylaws, written consents signed by a
sufficient number of stockholders to take action are delivered to the
Corporation by delivery to its registered office in the State of Delaware, its
principal place of business or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested.
(c) A telegram, electronic mail or other electronic
transmission consenting to action to be taken and transmitted by a stockholder
or proxy holder, or by a person or persons authorized to act for a stockholder
or proxy holder, shall be deemed to be written, signed and dated, as required by
Section 228 of the General Corporation Law of Delaware and by these Bylaws,
provided that any such telegram, electronic mail or other electronic
transmission sets forth or is delivered with information from which the
Corporation can determine: (i) that the telegram, electronic mail or other
electronic transmission was transmitted by the stockholder, proxy holder or
person authorized to act for the stockholder or proxy holder; and (ii) the date
on which such stockholder, proxy holder or authorized person(s) transmitted such
telegram, electronic mail or other electronic transmission. The date on which
such telegram, electronic mail or other electronic transmission is transmitted
shall be deemed to be the date on which such consent was signed. Unless
otherwise provided by resolution of the Board of Directors, no consent given by
telegram, electronic mail or other electronic transmission shall be deemed to
have been delivered until such consent is reproduced in paper form and until
such paper form shall be delivered to the Corporation by delivery to its
registered office, its principal place of business or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be made by and or by certified or registered mail, return receipt
requested.
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ARTICLE III
DIRECTORS
1. General Powers. The business and affairs of the Corporation
shall be managed by the Board of Directors or by such committees as the Board
may establish pursuant to these Bylaws.
2. Number, Term and Qualification. The number of Directors of the
Corporation shall be not less than one (1) nor more than eleven (11), as may be
fixed or changed from time to time, within the minimum and maximum, by the
stockholders or by the Board of Directors. Each Director shall hold office until
his death, resignation, retirement, removal, disqualification, or his successor
is elected and qualifies. Directors need not be residents of the State of
Delaware or stockholders of the Corporation.
3. Election of Directors. Except as provided in Section 5 of this
Article III, the Directors shall be elected at the annual meeting of
stockholders; and those persons who receive the highest number of votes shall be
deemed to have been elected.
4. Removal. Directors may be removed from office with or without
cause by a vote of stockholders holding a majority of the outstanding shares
entitled to vote at an election of Directors. If a director is elected by a
voting group of stockholders, only the stockholders of that voting group may
participate in the vote to remove him. If any Directors are so removed, new
Directors may be elected at the same meeting.
5. Vacancies. A vacancy occurring in the Board of Directors,
including, without limitation, a vacancy created by an increase in the
authorized number of Directors or resulting from the stockholders' failure to
elect the full authorized number of Directors, may be filled by the Board of
Directors or if the Directors remaining in office constitute less than a quorum
of the Directors, they may fill the vacancy by the affirmative vote of a
majority of all remaining Directors or by the sole remaining Director. If the
vacant office was held by a Director elected by a voting group, only the
remaining Director or Directors elected by that voting group or the holders of
shares of that voting group are entitled to fill the vacancy. A Director elected
to fill a vacancy shall be elected for the unexpired term of his predecessor in
office. The stockholders may elect a Director at any time to fill any vacancy
not filled by the Directors.
6. Chairman. There may be a Chairman of the Board of Directors
elected by the Directors from their number at any meeting of the Board of
Directors. The Chairman shall preside at all meetings of the Board of Directors
and of stockholders and perform such other duties as may be directed by the
Board of Directors. Until a Chairman of the Board of Directors is elected, the
President of the Corporation shall preside at the meetings of the Board of
Directors and stockholders.
7. Compensation. The Board of Directors may provide for the
compensation of Directors for their services as such and may provide for the
payment of any and all expenses incurred by the Directors in connection with
such services.
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8. Executive and Other Committees.
(a) The Board of Directors, by resolution adopted by a
majority of the number of Directors then in office, may designate from among its
members an Executive Committee and one or more other committees, each consisting
of one or more Directors, and each of which, to the extent authorized by law or
provided in the resolution, shall have and may exercise all of the authority of
the Board of Directors and may authorize the corporate seal to be affixed to all
papers which may require it, except no such committee shall have authority as to
the following matters: (i) the dissolution, merger or consolidation of the
Corporation, or the sale, lease or exchange of all or substantially all of the
property of the Corporation; (ii) the amendment of the Certificate of
Incorporation; (iii) the amendment or repeal of the Bylaws or adoption of new
Bylaws; (iv) the declaration of a dividend; (v) the issuance of stock; (vi) the
adoption of a certificate of ownership and merger pursuant to Section 253 of the
Delaware Corporation Law.
(b) Any resolutions adopted or other action taken by any
such committee within the scope of the authority delegated to it by the Board of
Directors shall be deemed for all purposes to be adopted or taken by the Board
of Directors. The designation of any committee and the delegation thereto of
authority shall not operate to relieve the Board of Directors, or any member
thereof, of any responsibility or liability imposed upon it or him by law.
(c) If a committee member is absent or disqualified, the
qualified members present at a meeting, even if not a quorum, may unanimously
appoint another Board of Directors member to act in the absent or disqualified
member's place.
(d) Regular meetings of any such committee may be held
without notice at such time and place as such committee may fix from time to
time by resolution. Special meetings of any such committee may be called by any
member thereof upon not less than one day's notice stating the place, date and
hour of such meeting, which notice may be written or oral, and if mailed, shall
be deemed to be delivered when deposited in the United States mail addressed to
any member of the committee at his business address. Any member of the committee
may waive notice of any meeting and no notice of any meeting need be given to
any member thereof who attends in person. The notice of a meeting of the
committee need not state the business proposed to be transacted at the meeting.
(e) A majority of the members of any such committee shall
constitute a quorum for the transaction of business at any meeting thereof, and
actions of such committee must be authorized by the affirmative vote of a
majority of the members present at the meeting at which a quorum is present.
(f) Any member of any such committee may be removed at
any time with or without cause by resolution adopted by a majority of the Board
of Directors.
(g) Any such committee shall elect a presiding officer
from among its members and may fix its own rules of procedure which shall not be
inconsistent with these Bylaws. It shall keep regular minutes of its proceedings
and report the same to the Board of Directors for its information at the meeting
thereof held next after the proceedings shall have been taken.
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ARTICLE IV
MEETINGS OF DIRECTORS
1. Regular Meetings. A regular meeting of the Board of Directors
shall be held immediately after, and at the same place as, the annual meeting of
stockholders. In addition, the Board of Directors may provide, by resolution,
the time and place for the holding of additional regular meetings.
2. Special Meetings. Special meetings of the Board of Directors
may be called by or at the request of the Chairman of the Board (if one has been
duly elected), the President or any two (2) Directors.
3. Notice of Meetings.
(a) Regular meetings of the Board of Directors may be
held without notice.
(b) The person or persons calling a special meeting of
the Board of Directors shall, at least twenty-four (24) hours before the
meeting, give notice thereof by any usual means of communication. Such notice or
waiver of notice need not specify the business to be transacted at, or the
purpose of, the meeting that is called. Notice of an adjourned meeting need not
be given if the time and place are fixed at the meeting adjourning and if the
period of adjournment does not exceed ten (10) days in any one adjournment.
(c) A Director may waive notice of any meeting.
Attendance by a Director at a meeting shall constitute a waiver of notice of
such meeting, except where a Director attends a meeting for the express purpose
of objecting to the transaction of any business because the meeting is not
lawfully called or convened.
4. Quorum. A majority of the Directors in office immediately
before the meeting shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors.
5. Manner of Acting.
(a) Except as otherwise provided in this Section, the act
of a majority of the Directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors, unless a greater number is required
by law, the charter of the Corporation, or a Bylaw adopted by the stockholders.
(b) A Director of the Corporation, who is present at a
meeting of the Board of Directors at which action on any corporate matter is
taken, shall be presumed to have assented to the action taken unless his
contrary vote is recorded or his dissent is otherwise entered in the minutes of
the meeting or unless he shall file his written dissent to such action with the
person acting as the secretary of the meeting before the adjournment thereof or
shall forward such dissent by registered mail to the Secretary of the
Corporation immediately after the adjournment
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of the meeting. Such right of dissent shall not apply to a Director who voted in
favor of such action.
(c) The vote of a majority of the number of Directors
then in office shall be required to adopt a resolution constituting an Executive
Committee or other committee of the Board. The vote of a majority of the
Directors then holding office shall be required to adopt, amend or repeal a
Bylaw, or to adopt a resolution dissolving the Corporation without action by the
stockholders, in circumstances authorized by law. Vacancies in the Board of
Directors may be filled as provided in Section 5 of Article III of these Bylaws.
6. Informal Action by Directors. Action taken by the Directors or
members of a committee of the Board of Directors without a meeting is
nevertheless Board or committee action if written consent to the action in
question is signed by all of the Directors or members of the committee, as the
case may be, and filed with the minutes of the proceedings of the Board or
committee, whether done before or after the action so taken.
7. Attendance by Telephone. Any one or more Directors or members
of a committee may participate in a meeting of the Board or committee by means
of a conference telephone or similar communications device which allows all
persons participating in the meeting to hear each other, and such participation
in the meeting shall be deemed presence in person at such meeting.
ARTICLE V
OFFICERS
1. Number. The officers of the Corporation shall consist of a
President, a Secretary, a Treasurer, and such Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers as the Board of Directors
may from time to time elect. Any two or more offices, other than that of
President and Secretary, may be held by the same person. In no event, however,
may an officer act in more than one capacity where action of two or more
officers is required.
2. Election and Term. The officers of the Corporation shall be
elected by the Board of Directors. Such election may be held at any regular or
special meeting of the Board. Each officer shall hold office until his death,
resignation, retirement, removal, disqualification, or his successor is elected
and qualifies.
3. Removal. Any officer or agent elected or appointed by the
Board of Directors may be removed by the Board with or without cause; but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed.
4. Compensation. The compensation of all officers of the
Corporation shall be fixed by the Board of Directors.
5. President. The President shall be the chief executive officer
of the Corporation and, subject to the control of the Board of Directors, shall
supervise and control the management of the Corporation in accordance with these
Bylaws. He shall, in the absence of a Chairman of the Board of Directors,
preside at all meetings of the Board of Directors and stockholders. He shall
sign, with any other proper officer, certificates for shares of the Corporation
and any deeds, mortgages, bonds, contracts, or other instruments which may be
lawfully executed on behalf of
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the Corporation, except where required or permitted by law to be otherwise
signed and executed and except where the signing and execution thereof shall be
delegated by the Board of Directors to some other officer or agent; and, in
general, he shall perform all duties incident to the office of President and
such other duties as may be prescribed by the Board of Directors from time to
time.
6. Vice Presidents. The Vice Presidents, in the order of their
appointment, unless otherwise determined by the Board of Directors, shall, in
the absence or disability of the President, perform the duties and exercise the
powers of that office. In addition, they shall perform such other duties and
have such other powers as the President or the Board of Directors shall
prescribe. The Board of Directors may designate one or more Vice Presidents to
be responsible for certain functions, including, without limitation, Marketing,
Finance, Manufacturing and Personnel. Vice Presidents shall not be executive
officers of the Corporation except as designated by the Board of Directors.
7. Secretary. The Secretary shall keep accurate records of the
acts and proceedings of all meetings of stockholders, Directors and committees.
He shall give all notices required by law and by these Bylaws. He shall have
general charge of the corporate books and records and of the corporate seal, and
he shall affix the corporate seal to any lawfully executed instrument requiring
it. He shall have general charge of the stock transfer books of the Corporation
and shall keep, at the registered or principal office of the Corporation, a
record of stockholders showing the name and address of each stockholder and the
number and class of the shares held by each. He shall sign such instruments as
may require his signature, and, in general, attest the signature or certify the
incumbency or signature of any other officer of the Corporation and shall
perform all duties incident to the office of Secretary and such other duties as
may be assigned him from time to time by the President or by the Board of
Directors.
8. Treasurer. The Treasurer shall have custody of all funds and
securities belonging to the Corporation and shall receive, deposit or disburse
the same under the direction of the Board of Directors. He shall keep full and
accurate accounts of the finances of the Corporation in books especially
provided for that purpose, which may be consolidated or combined statements of
the Corporation and one or more of its subsidiaries as appropriate, that include
a balance sheet as of the end of the fiscal year, an income statement for that
year, and a statement of cash flows for the year unless that information appears
elsewhere in the financial statements. If financial statements are prepared for
the Corporation on the basis of generally accepted accounting principles, the
annual financial statements must also be prepared on that basis. The Corporation
shall mail the annual financial statements, or a written notice of their
availability, to each stockholder within one hundred twenty 120 days of the
close of each fiscal year. The Treasurer shall, in general, perform all duties
incident to his office and such other duties as may be assigned to him from time
to time by the President or by the Board of Directors.
9. Assistant Secretaries and Treasurers. The Assistant
Secretaries and Assistant Treasurers shall, in the absence or disability of the
Secretary or the Treasurer, perform the respective duties and exercise the
respective powers of those offices, and they shall, in general, perform such
other duties as shall be assigned to them by the Secretary or the Treasurer,
respectively, or by the President or by the Board of Directors.
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10. Controller and Assistant Controllers. The Controller, if one
has been appointed, shall have charge of the accounting affairs of the
Corporation and shall have such other powers and perform such other duties as
the Board of Directors shall designate. Each Assistant Controller shall have
such powers and perform such duties as may be assigned by the Board of
Directors, and the Assistant Controllers shall exercise the powers of the
Controller during that officer's absence or inability to act.
11. Bonds. The Board of Directors, by resolution, may require any
or all officers, agents and employees of the Corporation to give bond to the
Corporation, with sufficient sureties, conditioned on the faithful performance
of the duties of their respective offices or positions, and to comply with such
other conditions as may from time to time be required by the Board of Directors.
ARTICLE VI
CONTRACTS, LOANS AND DEPOSITS
1. Contracts. The Board of Directors may authorize any officer or
officers, or agent or agents, to enter into any contract or execute and deliver
any instrument on behalf of the Corporation, and such authority may be general
or confined to specific instances.
2. Loans. No loans shall be contracted 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. Such authority may be
general or confined to specific instances.
3. Checks and Drafts. All checks, drafts or other orders for the
payment of money issued in the name of the Corporation shall be signed by such
officer or officers, or agent or agents, of the Corporation and in such manner
as shall from time to time be determined by resolution of the Board of
Directors.
4. Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
depository or depositories as the Board of Directors shall direct.
ARTICLE VII
CERTIFICATES FOR SHARES AND OTHER TRANSFER
1. Certificates for Shares. Certificates representing shares of
the Corporation shall be issued, in such form as the Board of Directors shall
determine, to every stockholder for the fully paid shares owned by him. These
certificates shall be signed by the President or any Vice President or a person
who has been designated as the chief executive officer of the Corporation and by
the Secretary, Assistant Secretary, Treasurer or Assistant Treasurer and sealed
with the seal of the Corporation or a facsimile thereof. The signatures of any
such officers upon a certificate may be facsimiles or may be engraved or printed
or omitted if the certificate is countersigned by a transfer agent, or
registered by a registrar, other than the Corporation itself or an employee of
the Corporation. In case any officer who has signed or whose facsimile or other
signature has been placed upon such certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer at the date of its issue. The
certificates shall be consecutively numbered or otherwise
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identified; and the name and address of the persons to whom they are issued,
with the number of shares and date of issue, shall be entered on the stock
transfer books of the Corporation.
2. Transfer of Shares. Transfer of shares shall be made on the
stock transfer books of the Corporation only upon surrender of the certificates
for the shares sought to be transferred by the record holder thereof or by his
duly authorized agent, transferee or legal representative. All certificates
surrendered for transfer shall be cancelled before new certificates for the
transferred shares shall be issued.
3. Transfer Agent and Registrar. The Board of Directors may
appoint one or more transfer agents and one or more registrars of transfer and
may require all stock certificates to be signed or countersigned by the transfer
agent and registered by the registrar of transfers.
4. Closing Transfer Books and Fixing Record Date.
(a) For the purpose of determining the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date shall not be more
than sixty (60) nor less than ten (10) days before the date of such meeting. If
no record date is fixed by the Board of Directors, such record date shall be at
the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. Such determination of
stockholders of record shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
(b) For the purpose of determining the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten (10) days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, such
record date, when no prior action by the Board of Directors is required by this
chapter, shall be the first date on which a signed written consent setting forth
the action taken or proposed to be taken is filed with the Secretary of the
Corporation. If no record date has been fixed by the Board of Directors and
prior action by the Board of Directors is required by the Delaware Corporation
Law, such record date shall be at the close of business on the day on which the
Board of Directors adopts the resolution taking such prior action.
(c) For the purpose of determining the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty (60) days prior to
such action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the
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close of business on the day on which the Board of Directors adopts the
resolution relating thereto.
5. Lost Certificates. The Board of Directors may authorize the
issuance of a new share certificate in place of a certificate claimed to have
been lost or destroyed, upon receipt of an affidavit of such fact from the
person claiming the loss or destruction. When authorizing such issuance of a new
certificate, the Board may require the claimant to give the Corporation a bond
in such sum as it may direct to indemnify the Corporation against loss from any
claim with respect to the certificate claimed to have been lost or destroyed; or
the Board may, by resolution reciting that the circumstances justify such
action, authorize the issuance of the new certificate without requiring such a
bond.
6. Holder of Record. The Corporation may treat as absolute owner
of the shares the person in whose name the shares stand of record on its books
just as if that person had full competency, capacity, and authority to exercise
all rights of ownership irrespective of any knowledge or notice to the contrary
or any description indicating a representative, pledge or other fiduciary
relation or any reference to any other instrument or to the rights of any other
person appearing upon its record or upon the share certificate; except that any
person furnishing to the Corporation proof of his appointment as a fiduciary
shall be treated as if he were a holder of record of the Corporation's shares.
7. Treasury Shares. Treasury shares of the Corporation shall
consist of such shares as have been issued and thereafter acquired but not
cancelled by the Corporation. Treasury shares shall not carry voting or dividend
rights, except rights in share dividends.
ARTICLE VIII
GENERAL PROVISIONS
1. Dividends. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law and by its charter.
2. Seal. The corporate seal shall have the name of the
corporation inscribed thereon and shall be in such form of as may be approved
from time to time by the Board of Directors. Such seal may be an impression or
stamp and may be used by the officers of the Corporation by causing it, or a
facsimile thereof, to be impressed or affixed or in any other manner reproduced.
In addition to any form of seal adopted by the Board of Directors, the officers
of the Corporation may use as the corporate seal a seal in the form of a circle
containing the name of the Corporation and the state of its incorporation (or an
abbreviation thereof) on the circumference and the word "Seal" in the center.
3. Waiver of Notice. Whenever any notice is required to be given
to any stockholder or Director under the provisions of the Delaware Corporation
Law or under the provisions of the charter or Bylaws of the Corporation, a
waiver thereof in writing signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be equivalent to
the giving of such notice.
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4. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
5. Form of Records. Any records maintained by the Corporation in
the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs, or any other information storage
device; provided that the records so kept can be converted into clearly legible
form within a reasonable time. The Corporation shall so convert any records so
kept upon the request of any person entitled to inspect the same.
6. Amendments. Except as otherwise provided herein, these Bylaws
may be amended or repealed and new Bylaws may be adopted by the affirmative vote
of stockholders entitled to exercise a majority of voting power of the
Corporation, or, if the Certificate of Incorporation of the Corporation so
permits, by the affirmative vote of a majority of the Directors then holding
office at any regular or special meeting of the Board of Directors or by
unanimous written consent.
The Board of Directors shall have no power to adopt a Bylaw: (i)
changing the statutory requirement for a quorum of Directors or action by
Directors or changing the statutory requirement for a quorum of stockholders or
action by stockholders; (ii) providing for the management of the Corporation
otherwise than by the Board of Directors or the committees thereof; (iii)
increasing or decreasing the number of Directors; or (iv) classifying and
staggering the election of Directors.
ARTICLE IX
INDEMNIFICATION AND REIMBURSEMENT
OF DIRECTORS AND OFFICERS
1. Indemnification for Expenses and Liabilities. Any person who
at any time serves or has served (i) as a director, officer, employee or agent
of the Corporation, (ii) at the request of the Corporation as a director,
officer, partner, trustee, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust, or other enterprise, or (iii) at
the request of the Corporation as a trustee or administrator under an employee
benefit plan, or is called as a witness at a time when he or she has not been
made a named defendant or respondent to any Proceeding, shall have a right to be
indemnified by the Corporation to the fullest extent from time to time permitted
by law against Liability and Expenses in any Proceeding (including without
limitation a Proceeding brought by or on behalf of the Corporation itself)
arising out of his or her status as such or activities in any of the foregoing
capacities.
The Board of Directors of the Corporation shall take all such action as
may be necessary and appropriate to authorize the Corporation to pay the
indemnification required by this provision, including without limitation, to the
extent needed, making a good faith evaluation of the manner in which the
claimant for indemnity acted and of the reasonable amount of indemnity due him
or her.
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Any person who at any time serves or has served in any of the
aforesaid capacities for or on behalf of the Corporation shall be deemed to be
doing or to have done so in reliance upon, and as consideration for, the rights
provided for herein. Any repeal or modification of these indemnification
provisions shall not affect any rights or obligations existing at the time of
such repeal or modification. The rights provided for herein shall inure to the
benefit of the legal representatives of any such person and shall not be
exclusive of any other rights to which such person may be entitled apart from
this provision.
The rights granted herein shall not be limited by the provisions
contained in Section 145 of the Delaware Corporation Law or any successor to
such statute.
2. Advance Payment of Expenses. The Corporation shall (upon
receipt of an undertaking by or on behalf of the director, officer, employee or
agent involved to repay the Expenses described herein unless it shall ultimately
be determined that he or she is entitled to be indemnified by the Corporation
against such Expenses) pay Expenses incurred by such director, officer, employee
or agent in defending a Proceeding or appearing as a witness at a time when he
or she has not been named as a defendant or a respondent with respect thereto in
advance of the final disposition of such Proceeding.
3. Insurance. The Corporation shall have the power to purchase
and maintain insurance (on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
domestic or foreign corporation, partnership, joint venture, trust or other
enterprise or as a trustee or administrator under an employee benefit plan)
against any liability asserted against him or her and incurred by him or her in
any such capacity, or arising out of his or her status as such, whether or not
the Corporation would have the power to indemnify him or her against such
liability.
4. Definitions. The following terms as used in this Article shall
have the following meanings. "Proceeding" means any threatened, pending or
completed action, suit, or proceeding and any appeal therein (and any inquiry or
investigation that could lead to such action, suit, or proceeding), whether
civil, criminal, administrative, investigative or arbitrative and whether formal
or informal. "Expenses" means expenses of every kind, including counsel fees.
"Liability" means the obligation to pay a judgment, settlement, penalty, fine
(including an excise tax assessed with respect to an employee benefit plan),
reasonable expenses incurred with respect to a Proceeding, and all reasonable
expenses incurred in enforcing the indemnification rights provided herein.
"Director," "officer," "employee" and "agent" include the estate or personal
representative of a director, officer, employee or agent. "Corporation" shall
include any domestic or foreign predecessor of this Corporation in a merger or
other transaction in which the predecessor's existence ceased upon consummation
of the transaction.
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THIS IS TO CERTIFY that the above Bylaws were duly adopted by the
Board of Directors of the Corporation by action taken, without a meeting,
effective July 25, 2003.
/S/ Pamela Wilkinson
---------------------------
Pamela Wilkinson, Secretary
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