1
EXHIBIT 3.02
BYLAWS
OF
THE VIRTUAL MALL, INC.
ARTICLE I
SHAREHOLDERS
SECTION 1. PLACE OF MEETINGS.
All meetings of shareholders shall be held at the principal executive
office of the Corporation, or at any other place, within or without the State of
California, specified by the Board of Directors. The place of any meeting of
shareholders shall be specified in the notice calling such meeting.
SECTION 2. ANNUAL MEETING.
The annual meeting of the shareholders, after the year 1994, shall be
held at __________ o'clock ___________, on __________, in each year, if not a
legal Holiday, and if a legal holiday, on the next business day following. In
the event the annual meeting of shareholders shall not be held on the date above
specified, the Board of Directors shall cause a meeting in lieu thereof to be
held as soon thereafter as convenient, and any business transacted or election
held at such meeting shall be as valid as if such business were transacted or
election held at the date and time specified above. At the annual meeting,
directors shall be elected, reports of the affairs of the Corporation shall be
considered, and any other business may be transacted which is within the power
of the shareholders.
SECTION 3. SPECIAL MEETINGS.
A special meeting of the shareholders for any purpose or purposes
whatsoever may be called at any time by the Chairman of the Board, by the
President, by the Board of Directors, or by one or more shareholders holding not
less than one-tenth of the voting power of the Corporation.
Upon request in writing to the Chairman of the Board, President, Vice
President or Secretary of the corporation by any person or persons (other than
the Board of Directors) entitled to call a special meeting of shareholders, it
shall be the duty of the officer to whom such request is made forthwith to cause
notice to be given to the shareholders entitled to vote that a meeting of the
shareholders will be held at a time, requested by the person or persons calling
the meeting, which shall be not less than thirty-five nor more than sixty days
after the receipt of such request.
SECTION 4. NOTICE OF MEETINGS.
Whenever shareholders are required or permitted to take any action at a meeting,
a written notice of the meeting shall be given not less than ten nor more than
sixty days before the
1.
2
date of the meeting to each shareholder entitled to vote thereat. Such notice
shall state the place, date and hour of the meeting. In the case of a special
meeting, such notice shall specify the general nature of the business to be
transacted and no other business may be transacted at such meeting. In the case
of the annual meeting, the notice shall specify those matters which the Board of
Directors, at the time of the mailing of the notice, intends to present for
action by the shareholders. The notice of any meeting at which the directors are
to be elected shall include the names of the nominees intended at the time of
the notice to be presented by management for election.
Notice of a shareholders' meeting or any report shall be given either
personally or by mail or other means of written communication, addressed to the
shareholder at the address of such shareholder appearing on the books of the
corporation or given by the shareholder 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 or deposited in the mail
or sent by other means of written communication. If any notice or report
addressed to the shareholder at the address of such shareholder 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 written
demand of the shareholder at the principal executive office of the Corporation
for a period of one year from the date of the giving of the notice or report to
all other shareholders.
When a shareholders' meeting is adjourned to another time or place,
notice need not be given of the adjourned meeting if the time and place thereof
are announced at the meeting at which the adjournment is taken. At the adjourned
meeting the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than
forty-five days or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting.
SECTION 5. CONSENT TO SHAREHOLDERS' MEETINGS AND ACTIONS WITHOUT
MEETINGS.
The transactions of any meeting of shareholders, however called and
noticed, and wherever held, are 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, 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. Attendance of a person at
a meeting shall constitute a waiver of notice of and 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 and except that attendance at a meeting is not a waiver of any right to
object to the consideration of matters required by law to be included in the
notice but not so included, if such objection is expressly made at the meeting.
Neither the business to be transacted at nor the purpose of any regular or
2.
3
special meeting of shareholders need be specified in any written waiver of
notice, consent to the holding of the meeting or approval of the minutes
thereof, except that any shareholder approval at a meeting, other than unanimous
approval by those entitled to vote, pursuant to Section 310 (transactions
between the Corporation and one or more of the directors), Section 902
(amendment to Articles of Incorporation), Section 1201 (reorganization), Section
1900 (voluntary dissolution), or Section 2007 (plan of distribution upon
dissolution) of the California Corporations Code shall be valid only if the
general nature of the proposal so approved is stated in the notice of meeting or
in any written waiver of notice.
Any action which may be taken at any annual or special meeting of
shareholders may be taken without a meeting and without prior notice, if a
consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding shares 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. Unless the consents
of all shareholders entitled to vote have been solicited in writing, notice of
any shareholder approval pursuant to Section 310 (transactions between the
Corporation and one or more of the directors), Section 317 (indemnification of
an officer, director or employee), Section 1201 (reorganization), or Section
2007 (plan of distribution upon dissolution) of the California Corporations Code
without a meeting by less than unanimous written consent shall be given at least
ten days before the consummation of the action authorized by such approval to
those shareholders entitled to vote who have not consented in writing. Prompt
notice also shall be given of the taking of any other corporate action approved
by shareholders without a meeting by less than unanimous written consent to
those shareholders entitled to vote who have not consented in writing. Directors
may not be elected by written consent except by unanimous written consent of all
shares entitled to vote for the election of directors, unless otherwise provided
in these Bylaws.
SECTION 6. QUORUM.
A majority of the shares entitled to vote, represented in person or by
proxy, shall constitute a quorum at a meeting of shareholders. 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.
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.
In the absence of a quorum, any meeting of shareholders may be adjourned
from time to time by the vote of a majority of the shares represented either in
person or by proxy, but no other business may be transacted, except as provided
hereinabove.
SECTION 7. VOTING RIGHTS.
Except as otherwise provided by law and except as may be otherwise
provided in the Articles of Incorporation, each outstanding share, regardless of
class, shall be entitled to one vote on each matter submitted to a vote of
shareholders. Any holder of shares entitled to vote on any
3.
4
matter may vote part of the shares in favor of the proposal and refrain from
voting the remaining shares or vote them against the proposal, other than
elections to office, but, if the shareholder fails to specify the number of
shares such shareholder is voting affirmatively, it will be conclusively
presumed that the shareholder's approving vote is with respect to all shares
such shareholder is entitled to vote.
Every person entitled to vote shares may authorize another person or
persons to act by proxy with respect to such shares. No proxy shall be valid
after the expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Subject to the foregoing, every proxy shall continue in
full force and effect until revoked by the person executing it prior to the vote
pursuant thereto. Such revocation may be effected by a writing delivered to the
Corporation stating that the proxy is revoked or by a subsequent proxy executed
by the person executing the prior proxy and presented to the meeting, or by
attendance at the meeting and voting in person by, the person executing the
proxy. A proxy is not revoked by the death or incapacity of the maker unless,
before the vote is counted, written notice of such death or incapacity is
received by the Corporation.
Any form of proxy or written consent distributed to 10 or more
shareholders of the Corporation at a time when the Corporation has outstanding
shares held of record by 100 or more persons shall afford an opportunity on the
proxy or form of written consent to specify a choice between approval and
disapproval of each matter or group of related matters intended to be acted upon
at the meeting for which the proxy is solicited or by such written consent,
other than elections to office, and shall provide, subject to reasonable
specified conditions, that where the person solicited specifies a choice with
respect to any such matter the shares will be voted in accordance therewith. In
any election of directors, any form of proxy in which the directors to be voted
upon are named therein as candidates and which is marked by a shareholder
"withhold" or otherwise marked in a manner indicating that the authority to vote
for the election of directors is withheld shall not be voted either for or
against the election of a director.
Subject to the provisions of the next sentence, every shareholder
entitled to vote at any election of directors may cumulate such shareholder's
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 the shareholder's
shares are entitled, or distribute the shareholder's votes on the same principle
among as many candidates as the shareholder thinks fit. No shareholder shall be
entitled to cumulate votes (i.e., cast for any candidate a number of votes
greater than the number of the shareholders shares) unless such candidate or
candidates' names have been placed in nomination prior to the voting and the
shareholder has given notice at the meeting prior to the voting of the
shareholder's intention to cumulate the shareholder's votes. If any one
shareholder has given such notice, all shareholders may cumulate their votes for
candidates in nomination. In any election of directors, the candidates receiving
the highest number of votes of the shares entitled to be voted for them up to
the number of directors to be elected by such shares are elected. Elections for
directors need not be by ballot unless a shareholder demands election by ballot
at the meeting and before the voting begins.
4.
5
SECTION 8. DETERMINATION OF SHAREHOLDERS OF RECORD.
In order that the Corporation may determine the shareholders entitled to
notice of any meeting or to vote or entitled to receive payment of any dividend
or other distribution or allotment of any rights or entitled to exercise any
rights in respect of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days prior to the date of such meeting nor more than sixty days prior to any
other action.
If no record date is fixed, the record date for determining 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. 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. 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 sixtieth day prior to the date of such other action, whichever
is later.
A determination of shareholders of record entitled to notice of or to
vote at a meeting of shareholders shall apply to any adjournment of the meeting
unless the Board of Directors fixes a new record date for the adjourned meeting,
but the Board of Directors shall fix a new record date if the meeting is
adjourned for more than forty-five days from the date set for the original
meeting.
Shareholders at the close of business on the record date are entitled to
notice and to vote or to receive the dividend, distribution or allotment of
rights or to exercise the rights, as the case may be, notwithstanding any
transfer of any shares on the books of the Corporation after the record date,
except as otherwise provided in the Articles of Incorporation or by agreement.
For the purpose of determining whether the Corporation has outstanding
shares held of record by one hundred or more persons, shares shall be deemed to
be "held of record" by each person who is identified as the owner of such shares
on the record of shareholders maintained by or on behalf of the Corporation, in
accordance with Section 605 of the California Corporations Code.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. NUMBER AND TERM OF OFFICE.
The number of directors shall be not less than six (6) nor more than
eleven (11), with the exact number of directors to be fixed, within the limits
specified, by approval of the board or the shareholders in a manner provided by
these Bylaws and the Articles of Incorporation. If the number of directors shall
be five or more, a bylaw or amendment of the Articles of Incorporation reducing
the fixed or the minimum number of directors to a number less than five cannot
be adopted if the votes cast against its adoption at a meeing, or the shares not
consenting in the case
5.
6
of action by written consent, are more than 16-2/3 percent of the outstanding
shares entitled to vote.
At each annual meeting of shareholders, directors shall be elected to
hold office until the next annual meeting; but if any such annual meeting is not
held, or the directors not elected thereat, the directors may be elected at any
special meeting of shareholders held for that purpose. Each director, including
a director elected to fill a vacancy, shall hold office until the expiration of
the term for which elected and until a successor has been elected and qualified.
SECTION 2. VACANCIES.
A vacancy or vacancies in the Board of Directors shall be deemed to
exist in the case of the death, resignation, or removal of any director in
accordance with Section 303 or Section 304 of the California Corporations Code,
or a change in the authorized number of directors by the Board of Directors or
by the shareholders, or if a vacancy is declared by the Board of Directors to
exist for one of the reasons specified in Section 302 of the California
Corporations Code.
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.
vacancies occurring in the Board of Directors by reason of the removal of
directors may be filled only by approval of the shareholders.
Shareholders may elect a director at any time to fill any vacancy not
filled by the directors. Any such election by written consent other than to fill
a vacancy created by removal shall require the consent of a majority of the
outstanding shares entitled to vote.
If, after the filling of any vacancy by the directors, the directors
then in office who have been elected by the shareholders shall constitute less
than a majority of the directors then in office, any holder or holders of an
aggregate of 5 percent or more of the total number of shares at the time
outstanding having the right to vote for such directors may call a special
meeting of shareholders to be held to elect the entire Board of Directors. The
term of office of any directors shall terminate upon such election of a
successor.
Any director may resign effective upon giving written notice to the
Chairman of the Board, 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.
SECTION 3. MEETINGS.
The Board of Directors shall hold a regular meeting immediately after
the meeting of shareholders at which it is elected and at the place where such
meeting is held for the purpose of appointing officers of the Corporation and
otherwise organizing and for the transaction of other business, and notice of
such meeting is hereby dispensed with.
Meetings of the Board of Directors may be called by the Chairman of the
Board or the President or any Vice President or the Secretary or any two
directors. Regular meetings of the Board of Directors may be held without notice
if the time and place of such meetings are fixed
6.
7
by the Bylaws or the Board of Directors. Special meetings of the Board of
Directors may be held upon at least four days' notice by mail or at least 48
hours' notice delivered personally or by telephone or telegraph. A notice, or
waiver of notice, need not specify the purpose of any regular or special meeting
of the Board of Directors. Notice of a meeting need not be given to any director
who signs a waiver of notice or a consent to holding the meeting or an approval
or the minutes thereof, whether before or after the meeting, or who attends the
meeting without protesting, prior thereto or at its commencement, the lack of
notice to such director. All such waivers, consents and approvals shall be filed
with the corporate records or made a part of the minutes of the meeting.
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.
Meetings of the Board of Directors may be held at any place within or
without the state which has been designated in the notice of the meeting or, if
not stated in the notice or there is no notice, designated in the Bylaws or by
resolution of the Board of Directors.
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. Participation in a
meeting pursuant to this section constitutes presence in person at such meeting.
SECTION 4. QUORUM.
A quorum of the Board of Directors for the transaction of business shall
be one-third of the authorized number of directors or two, whichever is larger,
unless the authorized number of directors is one, in which case one director
constitutes a quorum.
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 otherwise provided by law, or unless a greater number
be required by the Articles of Incorporation, or these Bylaws. 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.
SECTION 5. 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 shall individually
or collectively consent in writing to such action. Such written consent or
consents shall be filed with the minutes of the proceedings of the Board. Such
action by written consent shall have the same force and effect as a unanimous
vote of such directors.
SECTION 6. GENERAL AND SPECIFIC POWERS AND DUTIES.
7.
8
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. The Board may delegate the management of the day-to-day operation of
the business of the Corporation to a management company or other person provided
that the business and affairs of the Corporation shall be managed and all
corporate powers shall be exercised under the ultimate direction of the Board of
Directors.
A director shall perform the duties of a director, including duties as a
member of any committee of the Board of Directors upon which the director may
serve, in good faith, in a manner such director believes to be in the best
interests of the Corporation and with such care, including reasonable inquiry,
as an ordinarily prudent person in a like position would use under similar
circumstances.
SECTION 7. FEES AND COMPENSATION.
Directors and members of committees may receive such compensation, if
any, for their services, and such reimbursement for expenses, as may be fixed or
determined by resolution of the Board of Directors.
ARTICLE III
INDEMNIFICATION
SECTION 1. Indemnification.
This Corporation shall, to the maximum extent and in the manner
permitted by the California General Corporation Law, indemnify each of its
agents against expenses, judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with any proceeding arising by
reason of the fact that any such person is or was an agent of this Corporation
and the Corporation shall advance the expenses reasonably incurred by such agent
in defending such proceeding upon receipt of the undertaking specified in
Section 317(f) of the California Corporations Code. For the purposes of this
Article, (except as provided in Section 3) the term "agent" shall include only
those persons who are directors, or officers who are also directors, of the
Corporation. The terms "proceeding" and "expenses" used in this Article shall
have the same meanings as such terms in said Section 317. To the extent that an
agent of the Corporation has been successful on the merits in defense of any
proceeding 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. Except as provided in the prior sentence, any
indemnification under this Section 1 shall be made 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 in said Section 317 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 obtainable, by
independent legal counsel in a written opinion;
8.
9
(c) Approval or ratification by the affirmative vote of a
majority of the shares of this Corporation represented and voting at a duly held
meeting at which a quorum is present (which shares voting affirmatively also
constitute at least a majority of the required quorum) or by the written consent
of holders of a majority of the outstanding shares entitled to vote; for such
purpose, the shares owned by the person to be indemnified shall not be entitled
to vote thereon; or
(d) The court in which such proceeding is or was pending, upon
application made by this 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 this
Corporation.
SECTION 2. OTHER RIGHTS; CONTINUATION OF RIGHT TO INDEMNIFICATION.
The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which a person seeking indemnification may be
entitled under any law (common or statutory), 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 office, and shall continue as
to a person who has ceased to be an agent and shall inure to the benefit of the
estate, heirs, executors and administrators of such person. Nothing contained in
this Section 2 shall affect any right to indemnification to which persons other
than such agents may be entitled by contract or otherwise. All rights to
indemnification under this Article shall be deemed to be a contract between the
Corporation and each agent of the Corporation who serves or served in such
capacity at any time while this Article is in effect. Any repeal or modification
of this Article or any repeal or modification of relevant provisions of the
California General Corporation Law or any other applicable laws shall not in any
way diminish any rights to indemnification of such agent or the obligations of
the Corporation arising hereunder.
SECTION 3. INSURANCE.
The Corporation may purchase and maintain insurance on behalf of any
person who is or was or has agreed to become a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
such person and incurred by such person or on such person's behalf in any such
capacity, or arising out of his status as such, whether or not the Corporation
would have the power to indemnify such person against such liability under the
provisions of this Article, provided that such insurance is available on
acceptable terms, which determination shall be made by a vote of a majority of
the entire Board of Directors. For the purpose of this Section 3, only, "agent"
shall have the same meaning as such term in Section 317 of the California
Corporations Code.
SECTION 4. PERSONAL LIABILITY.
For all purposes hereunder, a director of the Corporation shall not be
personally liable to the corporation or its shareholders for monetary damages
for failure to discharge such person's obligations as a director, except for
liability (A)(i) for acts or omissions that involve intentional misconduct or a
knowing and culpable violation of law, (ii) for acts or omissions that a
director
9.
10
believes to be contrary to the best interests of the Corporation or its
shareholders or that involve the absence of good faith on the part of the
director, (iii) for any transaction from which a director derived an improper
personal benefit, (iv) for acts or omissions that show a reckless disregard for
the director's duty to the Corporation or its shareholders in circumstances in
which the director was aware, or should have been aware, in the ordinary course
of performing a director's duties, of a risk of serious injury to the
Corporation or its shareholders, (v) for acts or omissions that constitute an
unexcused pattern of inattention that amounts to an abdication of the director's
duty to the Corporation or its shareholders, (vi) under Section 310 of the
California Corporations Code, or (vii) under Section 316 of the California
Corporations Code, (B) for any act or omission occurring prior to the date when
this provision became effective, and (C) for acts or omissions as an officer,
notwithstanding that the officer is also a director or that his or her actions,
if negligent or improper, have been ratified by the Corporation's directors. If
the California General Corporation Law is amended after approval by the
shareholders of this Article to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest extent
permitted by the California General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
shareholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
SECTION 5. SAVINGS CLAUSE.
If this Article or any portion hereof shall be invalidated on any ground
by any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify each agent of the Corporation as to costs, charges and expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
with respect to any proceeding, including an action by or in the right of the
Corporation, to the full extent permitted by any applicable portion of this
Article that shall not have been invalidated and to the full extent permitted by
applicable law.
ARTICLE IV
OFFICERS AND COMMITTEES
SECTION 1. DESIGNATION OF OFFICERS.
The officers of the Corporation shall consist of the Chairman of the Board or
the President or both, the Secretary, and the Chief Financial Officer, and each
of them shall be appointed by the Board of Directors. The Corporation may also
have such other officers as may be appointed by the Board of Directors with such
titles and duties as may be determined by the Board of Directors and as may be
necessary to enable it to sign instruments and share certificates. If the Board
shall name one or more persons as Vice Presidents, the order of their seniority
shall be in the order of their nomination, unless otherwise determined by the
Board of Directors. Any number of offices may be held by the same person. All
officers of the Corporation shall hold office from the date appointed to the
date of the next succeeding regular meeting of the Board of Directors following
the meeting of shareholders at which the Board of Directors is elected, and
until their successors are elected; provided that all officers may be
10.
11
removed at any time at the pleasure of the Board of Directors, and upon the
removal, resignation, death or incapacity of any officer, the Board of Directors
may declare such office vacant and fill such vacancy. Any officer may resign at
any time upon written notice to the Corporation without prejudice to the rights,
if any, of the Corporation under any contract to which the officer is a party.
The salary and other compensation of the officers shall be fixed from time to
time by resolution of the Board of Directors.
SECTION 2. DUTIES OF THE CHAIRMAN OF THE BOARD.
If there is a Chairman of the Board, then he shall, when present,
preside at all meetings of the Board of Directors. He shall perform such duties
as the Board of Directors may from time to time determine. If there is no
President, then the Chairman of the Board shall perform all duties of the
President.
SECTION 3. DUTIES OF THE PRESIDENT.
Subject to such supervisory powers, if any, as may be given by the Board
of Directors to the Chairman of the Board, the President shall be the general
manager and chief executive officer of the Corporation and shall perform all the
duties commonly incident to that office. The President shall preside at all
meetings of the shareholders and, in the absence of the Chairman of the Board,
or, if there be none, at all meetings of the Board of Directors, and shall
perform such other duties as the Board of Directors may from time to time
determine.
SECTION 4. DUTIES OF VICE PRESIDENTS.
If the Board of Directors shall appoint one or more Vice Presidents, the
Vice Presidents, in the order of their seniority, unless otherwise established
by the Board of Directors, may assume and perform the duties of the President in
the absence or disability of the President or whenever the office of President
is vacant. The Vice Presidents shall have such titles, perform such other
duties, and have such other powers as the Board of Directors shall designate
from time to time.
SECTION 5. DUTIES OF SECRETARY.
The Secretary shall attend all meetings of the shareholders, of the Board of
Directors, and of any committee appointed pursuant to Section 7 of this Article
and shall keep or cause to be kept at the principal executive office or such
other place as the Board of Directors may order, a minute book of all such
meetings, containing all acts and proceedings thereof, the time and place of
holding thereof, whether regular or special, and, if special, how authorized,
the notice thereof given, the names of those present at directors' or committee
meetings, and the number of shares present or represented at shareholders'
meetings. The Secretary shall give notice, in conformity with these Bylaws, of
all meetings of the shareholders, and of all meetings of the Board of Directors
or any such committee requiring notice. The Secretary shall keep or cause to be
kept at the principal executive office or at the office of the Corporation's
transfer agent, a share register, or a duplicate share register, showing the
names of the shareholders and their addresses; the number and classes of shares
held by each; the number and date of certificates issued for same; and the
number and date of cancellation of every certificate surrendered for
cancellation. The Secretary shall keep the seal of the Corporation in safe
custody and shall perform such other
11.
12
duties and have such other powers as the Board of Directors shall designate from
time to time. The President may direct any Assistant Secretary to assume and
perform the duties of the Secretary in the absence or disability of the
Secretary, and each Assistant Secretary shall perform such other duties and have
such other powers as the Board of Directors shall designate from time to time.
SECTION 6. DUTIES OF CHIEF FINANCIAL OFFICER.
The Chief Financial Officer shall keep or cause to be kept the books of
account of the Corporation in a thorough and proper manner, and shall render
statements of the financial affairs of the Corporation in such form and as often
as required by the Board of Directors. The Chief Financial officer, subject to
the order of the Board of Directors, shall have the custody of all funds and
securities of the Corporation. The Chief Financial Officer shall perform all
other duties commonly incident to his office and shall perform such other duties
and have such other powers as the Board of Directors shall designate from time
to time. The President may direct any Deputy Financial officer to assume and
perform the duties of the Chief Financial Officer in the absence or disability
of the Chief Financial Officer, and each Deputy Financial Officer shall perform
such other duties and have such other powers as the Board of Directors shall
designate from time to time.
SECTION 7. APPOINTMENT OF COMMITTEES.
The Board of Directors may, by resolution adopted by a majority of the
authorized number of directors, designate one or more committees, each
consisting of two or more directors, to serve at the pleasure of the Board of
Directors.
The Board of Directors may designate one or more directors as alternate
members of any committee, who may replace any absent member at any meeting of
the committee. The appointment of members or alternate members of a committee
requires the vote of a majority of the authorized number of directors. Any such
committee, to the extent provided in the resolution of the Board of Directors or
in these Bylaws, shall have all the authority of the Board of Directors, except
with respect to: (a) the approval of any action for which shareholders' approval
or approval of the outstanding shares is required by law; (b) the filling of
vacancies on the Board of Directors or in any committee; (c) the fixing of
compensation of the directors for serving on the Board of Directors or on any
committee; (d) the amendment or repeal of 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; and (g) the
appointment of other committees of the Board of Directors or the members
thereof.
Unless the Board of Directors shall otherwise provide, regular meetings
of any committee appointed pursuant to this Section 7 shall be held at such
times and places as are determined by the Board of Directors, or by any such
committee, and when notice thereof has been given to each member of such
committee, no further notice of such regular meetings need be given thereafter;
special meetings of any such committee may be held at the principal executive
office of the Corporation, or at any place which has been designated from time
to time by resolution of
12.
13
such committee or by written consent of all members thereof, and may be called
by the Chairman of the Board, the President and any Vice President who is a
member of such committee, or by any two members thereof, upon written notice to
the members of such committee of the time and place of such special meeting
given in the manner provided for the giving of written notice to members of the
Board of Directors of the time and place of special meetings of the Board of
Directors; and a majority of the authorized number of members of any such
committee shall constitute 10 quorum for the transaction of business.
ARTICLE V
EXECUTION OF CORPORATE INSTRUMENTS,
RATIFICATION OF CONTRACTS, AND VOTING OF SHARES
OWNED BY THE CORPORATION
SECTION 1. EXECUTION OF CORPORATE INSTRUMENTS.
The Board of Directors may, in its discretion, determine the method and
designate the signatory officer or officers or other person or persons to
execute any corporate instrument or document, or to sign the corporate name
without limitation, except where otherwise provided by law, and such execution
or signature shall be binding upon the Corporation. No officer shall sign any
instrument or document unless the Board of Directors has approved the underlying
transaction.
Unless otherwise required by law, any note, mortgage, evidence of
indebtedness, contract, share certificate, conveyance or other instrument in
writing, and any assignment or endorsement thereof, executed or entered into
between the Corporation and any other person, when signed by the Chairman of the
Board, the President or any Vice President and the Secretary, any Assistant
Secretary, the Chief Financial officer or any Deputy Financial Officer of the
Corporation, is not invalidated as to the Corporation by any lack of authority
of the signing officers in the absence of actual knowledge on the part of the
other person that the signing officers had no authority to execute the same.
All checks and drafts drawn on banks or other depositories of funds to
the credit of the Corporation, or in special accounts of the Corporation, shall
be signed by such person or persons as the Board of Directors shall authorize so
to do.
SECTION 2. RATIFICATION BY SHAREHOLDERS.
The Board of Directors may, in its discretion, submit any contract or
act for approval or ratification of the shareholders at any annual meeting of
shareholders or at any special meeting of shareholders called for that purpose;
and any contract or act which shall be approved or ratified by the shareholders
or by the outstanding shares shall be as valid and binding upon the Corporation
and upon the shareholders thereof as though approved or ratified by each and
every shareholder of the Corporation, unless a greater vote is required by law
for such purpose.
13.
14
SECTION 3. VOTING OF SHARES OWNED BY CORPORATION.
All shares of other corporations owned or held by the Corporation for
itself, or for other parties in any capacity, shall be voted, and all proxies
with respect thereto shall be executed, by the person authorized so to do by
resolution of the Board of Directors, or, in the absence of such authorization,
by the Chairman of the Board or by the President or by any Vice President.
ARTICLE VI
SHARES OF STOCK
SECTION 1. FORM OF CERTIFICATES.
Every holder of shares in the Corporation shall be entitled to have a
certificate signed in the name of the Corporation by the Chairman or Vice
Chairman of the Board or the President or a Vice President and by the Chief
Financial Officer or a Deputy Financial Officer or the Secretary or any
Assistant Secretary, certifying the number of shares and the class or series of
shares owned by the shareholder. Any or all of the signatures on the certificate
may be facsimile. 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, the issuance of such certificate by the Corporation shall
have the same effect as if such person were an officer, transfer agent or
registrar at the date of issue.
If the shares of the corporation are classified or if any class of
shares has two or more series, there shall appear on the certificate one of the
following: (a) a statement of the rights, preferences, privileges and
restrictions granted to or imposed upon each class or series of shares
authorized to be issued and upon the holders thereof; (b) a summary of such
rights, preferences, privileges and restrictions with reference to the
provisions of the Articles of Incorporation and any Certificates of
Determination establishing the same; (c) a statement setting forth the office or
agency of the Corporation from which shareholders may obtain, upon request and
without charge, a copy of the statement referred to in (a) above.
There shall also appear on the certificate the statements required by
all of the following clauses to the extent applicable: (1) the fact that the
shares are subject to restrictions upon transfer; (2) if the shares are
assessable or are not fully paid, a statement that they are assessable or, on
partly paid shares, the total amount of the consideration to be paid therefor
and the amount paid thereon; (3) the fact that the shares are subject to a close
corporation voting agreement or an irrevocable proxy or restrictions upon voting
rights contractually imposed by the Corporation; (4) the fact that the shares
are redeemable; and (5) the fact the shares are convertible and the period for
conversion. Any such statement or reference thereto on the face of the
certificate required by this paragraph shall be conspicuous.
When the Articles of Incorporation are amended in any way affecting the
statements contained in the certificates for outstanding shares, or it becomes
desirable for any reason, in the discretion of the Board of Directors, to cancel
any outstanding certificate for shares and issue a new certificate therefor
conforming to the rights of the holder, the Board of Directors may order
14.
15
any holders of outstanding certificates for shares to surrender and exchange
them for new certificates within a reasonable time to be fixed by the Board of
Directors.
SECTION 2. TRANSFER OF SHARES.
Shares of the Corporation may be transferred in any manner permitted or
provided by law. Before any transfer of shares is entered upon the books of the
Corporation, or any new certificate issued therefor, the old certificate
properly endorsed shall be surrendered and cancelled, except when a certificate
has been lost or destroyed.
SECTION 3. LOST CERTIFICATES.
The Corporation shall issue a new share certificate or a new certificate
for any other security in the place of any certificate theretofore issued by it,
alleged to have been lost, stolen or destroyed, provided that, prior to the
issuance of such new certificate the Corporation may require the owner of the
lost, stolen or destroyed certificate or the owner's legal representative to
give the Corporation a bond (or other adequate security) sufficient to indemnify
it against any claim that may be made against it (including any expense or
liability) on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
SECTION 4. ELECTRONIC SECURITIES RECORDATION.
Notwithstanding the provisions of Sections 1 through 3, inclusive
hereinabove, the Corporation may adopt a system of issuance, recordation and
transfer of its shares by electronic or other means not involving any issuance
of certificates, provided the use of such system by the Corporation is permitted
by the California Corporations Code.
ARTICLE VII
ANNUAL REPORT
An annual report, meeting the requirements specified in Section 1501 of
the California Corporations Code, shall be sent to the shareholders not later
than the 120th day after the close of the fiscal year of the Corporation or the
fifteenth day preceding the annual meeting of shareholders for the next
succeeding fiscal year, whichever shall first occur; provided, however, that no
such report need be sent if the number of shareholders of record is less than
one hundred.
ARTICLE VIII
CORPORATE SEAL
The corporate seal shall consist of a circular die bearing the name of
the Corporation and the state and date of its incorporation. If and when
authorized by the Board of Directors, a duplicate of the corporate seal may be
kept and used by such officer or person as the Board of Directors may designate.
Failure to affix the corporate seal does not affect the validity of any
instrument of the Corporation.
15.
16
ARTICLE IX
AMENDMENTS
The Bylaws of the Corporation shall be subject to amendment or repeal
and new Bylaws may be adopted by the approval of the outstanding shares. After
the issuance of shares, a bylaw specifying or changing a fixed number of
directors or the maximum or minimum number or changing from a fixed to a
variable board or vice versa may only be adopted by approval of the outstanding
shares; provided, however, that a bylaw reducing the number or the minimum
number of directors to a number less than five cannot 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 are equal to more than 16-2/3 percent of the
outstanding shares entitled to vote. Subject to the right of the shareholders to
adopt, amend or repeal the Bylaws, the Bylaws (other than a Bylaw or an
amendment thereof changing the authorized number of directors) may be adopted,
amended, or repealed by the affirmative vote of a majority of the directors.
ARTICLE X
DEFINITIONS
As used in these Bylaws, the following terms shall have the meanings
indicated unless otherwise expressly provided to the contrary or unless the
context in which such terms are used indicates that a different meaning is
intended:
(a) "Meeting" and "meetings" shall include all meetings of
shareholders or directors or committees, as the case may be, whether annual,
regular, or special.
(b) "Principal executive office" shall mean that place which is
from time to time fixed by the Board of Directors as the principal executive
office for the transaction of the business of the Corporation.
(c) "Approved by (or approval of) the outstanding shares" shall
mean approved by the affirmative vote of a majority of the outstanding shares
entitled to vote. Such approval shall include the affirmative vote of a majority
of the outstanding shares of each class or series entitled, by any provisions of
the Articles of Incorporation or by law, to vote as a class or series on the
subject matter being voted upon and shall also include the affirmative vote of
such greater proportion (including all) of the outstanding shares of any class
or series if such greater proportion is required by the Articles of
Incorporation or by law.
(d) "Approved by (or approval of) the shareholders" shall mean
approved or ratified by the affirmative vote of a majority of the shares
represented and voting at a duly held meeting at which a quorum is present
(which shares voting affirmatively also constitute at least a majority of the
required quorum) or by the written consent of shareholders or by the affirmative
vote or written consent of such greater proportion (including all) of the shares
of any class or series as may be provided in the Articles of Incorporation or by
law for all or any specified shareholder action.
16.
17
CERTIFICATE OF SECRETARY
I, the undersigned, the duly elected Secretary of The Virtual Mall,
Inc., a California corporation, do hereby certify:
That the within and foregoing Bylaws were adopted as the Bylaws of the
corporation by the Incorporator on July 8, 1994, and by the Directors on August
____, 1994, and the same do now constitute the Bylaws of said corporation.
IN WITNESS WHEREOF, I have hereunto subscribed my name this __________
day of August ___, 1994.
-----------------------------
Fred Campbell, Secretary
1.