BYLAWS
OF
NANG, INCORPORATED
TABLE OF CONTENTS
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SECTION PAGE
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SECTION 1 - OFFICES . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2 - SHAREHOLDERS. . . . . . . . . . . . . . . . . . . . . . 1
2.1 Annual Meeting . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Special Meetings . . . . . . . . . . . . . . . . . . . . . 1
2.3 Meetings by Communications Equipment . . . . . . . . . . . 1
2.4 Date, Time and Place of Meetings . . . . . . . . . . . . . 1
2.5 Notice of Meeting. . . . . . . . . . . . . . . . . . . . . 2
2.6 Waiver of Notice . . . . . . . . . . . . . . . . . . . . . 2
2.7 Fixing of Record Date for Determining Shareholders . . . . 3
2.8 Voting Record. . . . . . . . . . . . . . . . . . . . . . . 3
2.9 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.10 Manner of Acting . . . . . . . . . . . . . . . . . . . . . 4
2.11 Proxies. . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.12 Voting Shares. . . . . . . . . . . . . . . . . . . . . . . 4
2.13 Voting for Directors . . . . . . . . . . . . . . . . . . . 4
2.14 Action by Shareholders Without a Meeting . . . . . . . . . 4
SECTION 3 - BOARD OF DIRECTORS. . . . . . . . . . . . . . . . . . . 5
3.1 General Powers . . . . . . . . . . . . . . . . . . . . . . 5
3.2 Number and Tenure. . . . . . . . . . . . . . . . . . . . . 5
3.3 Annual and Regular Meetings. . . . . . . . . . . . . . . . 5
3.4 Special Meetings . . . . . . . . . . . . . . . . . . . . . 5
3.5 Meetings by Communications Equipment . . . . . . . . . . . 5
3.6 Notice of Special Meetings . . . . . . . . . . . . . . . . 6
3.6.1 Personal Delivery. . . . . . . . . . . . . . . . 6
3.6.2 Delivery by Mail . . . . . . . . . . . . . . . . 6
3.6.3 Delivery by Private Carrier. . . . . . . . . . . 6
3.6.4 Facsimile Notice . . . . . . . . . . . . . . . . 6
3.6.5 Delivery by Telegraph . . . . . . . . . . . . . 6
3.6.6 Oral Notice. . . . . . . . . . . . . . . . . . . 6
3.7 Waiver of Notice . . . . . . . . . . . . . . . . . . . . . 7
3.7.1 In Writing . . . . . . . . . . . . . . . . . . . 7
3.7.2 By Attendance. . . . . . . . . . . . . . . . . . 7
3.8 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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3.9 Manner of Acting . . . . . . . . . . . . . . . . . . . . . 7
3.10 Presumption of Assent. . . . . . . . . . . . . . . . . . . 8
3.11 Action by Board or Committees Without a Meeting. . . . . . 8
3.12 Resignation. . . . . . . . . . . . . . . . . . . . . . . . 8
3.13 Removal. . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.14 Vacancies. . . . . . . . . . . . . . . . . . . . . . . . . 9
3.15 Executive and Other Committees . . . . . . . . . . . . . . 9
3.15.1 Creation of Committees. . . . . . . . . . . . . 9
3.15.2 Authority of Committees . . . . . . . . . . . . 9
3.15.3 Minutes of Meetings . . . . . . . . . . . . . . 9
3.15.4 Removal . . . . . . . . . . . . . . . . . . . . 10
3.16 Compensation . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4 - OFFICERS. . . . . . . . . . . . . . . . . . . . . . . . 10
4.1 Appointment and Term . . . . . . . . . . . . . . . . . . . 10
4.2 Resignation. . . . . . . . . . . . . . . . . . . . . . . . 10
4.3 Removal. . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.4 Contract Rights of Officers. . . . . . . . . . . . . . . . 11
4.5 Chairman of the Board. . . . . . . . . . . . . . . . . . . 11
4.6 President. . . . . . . . . . . . . . . . . . . . . . . . . 11
4.7 Vice President . . . . . . . . . . . . . . . . . . . . . . 11
4.8 Secretary. . . . . . . . . . . . . . . . . . . . . . . . . 11
4.9 Treasurer. . . . . . . . . . . . . . . . . . . . . . . . . 12
4.10 Salaries . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.11 Loans from the Corporation . . . . . . . . . . . . . . . . 12
SECTION 5 - CONTRACTS, LOANS, CHECKS AND DEPOSITS . . . . . . . . . 12
5.1 Contracts. . . . . . . . . . . . . . . . . . . . . . . . . 12
5.2 Loans to the Corporation . . . . . . . . . . . . . . . . . 12
5.3 Checks, Drafts, Etc. . . . . . . . . . . . . . . . . . . . 12
5.4 Deposits . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6 - CERTIFICATES FOR SHARES AND THEIR TRANSFER. . . . . . . 13
6.1 Issuance of Shares . . . . . . . . . . . . . . . . . . . . 13
6.2 Certificates for Shares. . . . . . . . . . . . . . . . . . 13
6.3 Stock Records. . . . . . . . . . . . . . . . . . . . . . . 13
6.4 Transfer of Shares . . . . . . . . . . . . . . . . . . . . 13
6.5 Lost or Destroyed Certificates . . . . . . . . . . . . . . 14
SECTION 7 - BOOKS AND RECORDS . . . . . . . . . . . . . . . . . . . 14
SECTION 8 - ACCOUNTING YEAR . . . . . . . . . . . . . . . . . . . . 14
SECTION 9 - SEAL. . . . . . . . . . . . . . . . . . . . . . . . . . 15
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SECTION 10 - INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . 15
10.1 Right to Indemnification . . . . . . . . . . . . . . . . . 15
10.2 Restrictions on Indemnification . . . . . . . . . . . . . 15
10.3 Successful Defense . . . . . . . . . . . . . . . . . . . . 16
10.4 Authorization. . . . . . . . . . . . . . . . . . . . . . . 16
10.5 Advancement of Expenses. . . . . . . . . . . . . . . . . . 16
10.6 Nonexclusivity of Rights . . . . . . . . . . . . . . . . . 16
10.7 Insurance, Contracts and Funding . . . . . . . . . . . . . 17
10.8 Identification of Employees and Agents of the Corporation. 17
10.9 Persons Serving Other Entities . . . . . . . . . . . . . . 17
SECTION 11 - REIMBURSEMENT OF DISALLOWED EXPENSES . . . . . . . . . 17
SECTION 12 - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . 18
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BYLAWS
OF
NANG, INCORPORATED
SECTION 1. OFFICES
The principal office of the Corporation shall be the address of the
registered office of the Corporation as so designated in the office of the
Secretary of the State of Delaware, or such other address as the Board of
Directors ("Board") may from time to time determine. The Corporation may have
such other offices within or without the State of Delaware as the Board may
designate or as the business of the Corporation may require. The Directors
shall from time to time appoint a Registered Agent for the Corporation within
the State of Delaware.
SECTION 2. SHAREHOLDERS
2.1 ANNUAL MEETING
The annual meeting of the shareholders to elect Directors and transact such
other business as may properly come before the meeting shall be held on a date
not more than 180 days after the end of the Corporation's fiscal year, such date
and time to be determined by the Board.
2.2 SPECIAL MEETINGS
Special meetings of the shareholders of the Corporation for any purpose may
be called at any time by the Board or, if the Directors in office constitute
fewer than a quorum of the Board, by the affirmative vote of a majority of all
the Directors in office, but such special meetings may not be called by any
other person or persons.
2.3 MEETINGS BY COMMUNICATIONS EQUIPMENT
Shareholders may participate in any meeting of the shareholders by any
means of communication by which all persons participating in the meeting can
hear each other during the meeting. Participation by such means shall
constitute presence in person at a meeting.
2.4 DATE, TIME AND PLACE OF MEETING
Except as otherwise provide in these Bylaws, all meetings of shareholders,
including those held pursuant to demand by shareholders, shall be held on such
date and at such time and place designated by or at the direction of the Board.
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2.5 NOTICE OF MEETING
Written notice stating the place, day and hour of the meeting and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called shall be given by or at the direction of the Board, the Chairman of the
Board, the President or the Secretary to each shareholder entitled to notice of
or to vote at the meeting not less than 10 nor more than 60 days before the
meeting, except that notice of a meeting to act on an amendment to the Articles
of Incorporation, a plan of merger or share exchange, the sale, lease, exchange
or other disposition of all or substantially all of the Corporation's assets
other than in the regular course of business or the dissolution of the
Corporation shall be given not less than 20 or more than 60 days before such
meeting. If an annual or special shareholders' meeting is adjourned to a
different date, time or place, no notice of the new date, time or place is
required if they are announced at the meeting before adjournment. If a new
record date for the adjourned meeting is or must be fixed, notice of the
adjourned meeting must be given to shareholders entitled to notice of or to vote
as of the new record date.
Such notice may be transmitted by mail, private carrier, personal delivery,
telegraph, teletype or communications equipment that transmits a facsimile of
the notice. If those forms of written notice are impractical in the view of the
Board, the Chairman of the Board, the President or the Secretary, written notice
may be transmitted by an advertisement in a newspaper of general circulation in
the area of the Corporation's principal office. If such notice is mailed, it
shall be deemed effective when deposited in the official government mail,
first-class postage prepaid, properly addressed to the shareholder at such
shareholder's address as it appears in the Corporation's current record of
shareholders. Notice given in any other manner shall be deemed effective when
dispatched to the shareholder's address, telephone number or other number
appearing on the records of the Corporation. Any notice given by publication as
herein provided shall be deemed effective five days after first publication.
2.6 WAIVER OF NOTICE
Whenever any notice is required to be given by a shareholder under the
provisions of these Bylaws, the Articles of Incorporation or the Delaware
Revised Statutes, a waiver of notice in writing, signed by the person or persons
entitled to such notice and delivered to the Corporation, whether before or
after the date and time of the meeting or before or after the action to be taken
by consent is effective, shall be deemed equivalent to the giving of such
notice. Further, notice of the time, place and purpose of any meeting will be
deemed to be waived by any shareholder by attendance in person or by proxy,
unless such shareholder at the beginning of the meeting objects to holding the
meeting or transacting business at the meeting.
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2.7 FIXING OF RECORD DATE FOR DETERMINING SHAREHOLDERS
For the purpose of determining shareholders entitled (a) to notice of or to
vote at any meeting of shareholders or any adjournment thereof, (b) to demand a
special meeting, or (c) to receive payment of any dividend, or in order to make
a determination of shareholders for any other purpose, the Board may fix a
future date as the record date for any such determination. Such record date
shall be not more than 70 days, and, in case of a meeting of shareholders, not
less than 10 days, prior to the date on which the particular action requiring
such determination is to be taken. If no record date is fixed for the
determination of shareholders entitled to notice of or to vote a meeting, the
record date shall be the day immediately preceding the date on which notice of
the meeting is first given to shareholders. Such a determination shall apply to
any adjournment of the meeting unless the Board fixes a new record date, which
it shall do if the meeting is adjourned to a date more than 120 days after the
date fixed for the original meeting. If no record date is set for the
determination of shareholders entitled to receive payment of any stock, dividend
or distribution (other than one involving a purchase, redemption or other
acquisition of the Corporation's shares), the record date shall be the date the
Board authorizes the stock dividend or distribution.
2.8 VOTING RECORD
At least 10 days before each meeting of shareholders, an alphabetical list
of the shareholders entitled to notice of such meeting shall be made, arranged
by voting group and by each class or series of shares, with the address of and
number of shares held by each shareholder. This record shall be kept at the
principal office of the Corporation for 10 days prior to such meeting, and shall
be kept open at such meeting, for the inspection of any shareholder or any
shareholder's agent or attorney.
2.9 QUORUM
Except with respect to any greater requirement contained in the Articles of
Incorporation or the Delaware Revised Statutes, a majority of the votes entitled
to be cast on a matter by the holders of shares that, pursuant to the Articles
of Incorporation or the Delaware Revised Statutes, are entitled to vote and be
counted collectively upon such matter, represented in person or by proxy, shall
constitute a quorum of such shares at a meeting of shareholders. If less than
the required number of such votes are represented at a meeting, a majority of
the votes so represented may adjourn the meeting from time to time. Any
business may be transacted at a reconvened meeting that might have been
transacted at the meeting as originally called, provided a quorum is present or
represented at such meeting. Once a share is represented for any purpose at a
meeting other than solely to object to holding the meeting or transacting
business, it is deemed present for quorum purposes for the remainder of the
meeting and any adjournment (unless a new record date is or must be set for the
adjourned meeting), notwithstanding the withdrawal of enough shareholders to
leave less than a quorum.
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2.10 MANNER OF ACTING
If a quorum is present, action on a matter other than the election of
Directors shall be approved if the votes cast in favor of the action by the
shares entitled to vote and be counted collectively upon such matter exceed the
votes cast against such action by the shares entitled to vote and be counted
collectively thereon, unless the Articles of Incorporation or the Delaware
Revised Statutes requires a greater number of affirmative votes. Whenever the
Delaware Revised Statutes permits a Corporation's bylaws to specify that a
lesser number of shares than would otherwise be required shall suffice to
approve an action by shareholders, these Bylaws hereby specify that the number
of shares required to approve such an action shall be such lesser number.
2.11 PROXIES
A shareholder may vote by proxy executed in writing by the shareholder or
by his or her attorney-in-fact or agent. Such proxy shall be effective when
received by the Secretary or other officer or agent authorized to tabulate
votes. A proxy shall become invalid 11 months after the date of its execution,
unless otherwise provided in the proxy. A proxy with respect to a specified
meeting shall entitle its holder to vote at any reconvened meeting following
adjournment of such meeting but shall not be valid after the final adjournment.
2.12 VOTING SHARES
Except as provided in the Articles of Incorporation, each outstanding share
entitled to vote with respect to a matter submitted to a meeting of shareholders
shall be entitled to one vote upon such matter.
2.13 VOTING FOR DIRECTORS
Each shareholder entitled to vote to an election of Directors may vote, in
person or by proxy, the number of shares owned by such shareholder for as many
persons as there are Directors to be elected and for whose election such
shareholder has a right to vote. Shareholders shall not have the right to
cumulate their votes. Unless otherwise provided in the Articles of
Incorporation, the candidates elected shall be those receiving the largest
number of votes cast, up to the number of Directors to be elected.
2.14 ACTION BY SHAREHOLDERS WITHOUT A MEETING
Any action required or permitted to be taken at a meeting of the
stockholders may be taken without a meeting if, before or after the action, a
written consent thereto is signed by the stockholders holding at least a
majority of the voting power, except that if a different proportion of voting
power is required for such an action at a meeting, then that proportion of
written consents in required. Any such consent shall be inserted in the minute
book as if it were the minutes of a meeting of the shareholders.
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SECTION 3. BOARD OF DIRECTORS
3.1 GENERAL POWERS
All corporate powers shall be exercised by or under the authority of, and
the business and affairs of the Corporation shall be managed under the direction
of, the Board, except as may be otherwise provided in these Bylaws, the Articles
of Incorporation or the Delaware Revised Statutes.
3.2 NUMBER AND TENURE
The Board shall be composed of not less than one nor more than eleven
Directors, the specific number to be set by resolution of the Board or, if the
Directors in office constitute fewer than a quorum of the Board, by the
affirmative vote of a majority of all the Directors in office. Each Director
shall hold office until the next annual general meeting of shareholders and
until his/her successor have been elected and qualified. Directors need not be
residents of the State of Delaware or shareholders of the Corporation, be no
less than 18 years of age and need not meet any other qualifications. The
Directors shall be elected by the shareholders at the annual general meeting
each year, and if, for any cause, the Directors shall not have been elected at
an annual general meeting, they may be elected at a special meeting of
shareholders called for that purpose in the manner provided by these Bylaws.
3.3 ANNUAL AND REGULAR MEETINGS
An annual Board meeting shall be held without notice immediately after and
at the same place as the annual meeting of shareholders. By resolution the
Board, or any committee designated by the Board, may specify the time and place
for holding regular meetings without notice other than such resolution.
3.4 SPECIAL MEETINGS
Special meetings of the Board or any committee designated by the Board may
be called by or at the request of the Chairman of the Board, the President, the
Secretary or, in the case of special Board meetings, any one-third or more of
the Directors in office and, in the case of any special meeting of any committee
designated by the Board, by its Chairman. The person or persons authorized to
call special meetings may fix any place for holding any special Board or
committee meeting called by them.
3.5 MEETINGS BY COMMUNICATIONS EQUIPMENT
Members of the Board or any committee designated by the Board may
participate in a meeting of such Board or committee by, or conduct the meeting
through the use of, any means of communication by which all Directors
participating in the meeting can hear each other during the meeting.
Participation by such means shall constitute presence in person at a meeting.
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3.6 NOTICE OF SPECIAL MEETINGS
Notice of a special Board or committee meeting stating the place, day and
hour of the meeting shall be given to a Director in writing, orally or by email
to such address or addresses as provided by each director. Neither the business
to be transacted at nor the purpose of any special meeting need be specified in
the notice of such meeting.
3.6.1 PERSONAL DELIVERY
If notice is given by personal delivery, the notice shall be delivered to a
Director at least two days before the meeting.
3.6.2 DELIVERY BY MAIL
If notice is delivered by mail, the notice shall be deposited in the
official government mail at least five days before the meeting, properly
addressed to a Director at his or her address shown on the records of the
Corporation, with postage thereon prepaid.
3.6.3 DELIVERY BY PRIVATE CARRIER
If notice is given by private carrier, the notice shall be dispatched to a
Director at his or her address shown on the records of the Corporation at least
three days before the meeting.
3.6.4 FACSIMILE NOTICE
If a notice is delivered by wire or wireless equipment that transmits a
facsimile of the notice, the notice shall be dispatched at least two days before
the meeting to a Director at his or her telephone number or other number
appearing on the records of the Corporation.
3.6.5 DELIVERY BY TELEGRAPH
If notice is delivered by telegraph, the notice shall be delivered to the
telegraph company for delivery to a Director at his or her address shown on the
records of the Corporation at least three days before the meeting.
3.6.6 ORAL NOTICE
If notice is delivered by orally, by telephone or in person, the notice shall be
personally given to the Director at least two days before the meeting.
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3.7 WAIVER OF NOTICE
3.7.1 IN WRITING
Whenever any notice is required to be given to any Director under the
provisions of these Bylaws, the Articles of Incorporation or the Delaware
Revised Statutes, a waiver thereof in writing, signed by the person or persons
entitled to such notice and delivered to the Corporation, whether before or
after the date and time of the meeting, shall be deemed equivalent to the giving
of such notice. Neither the business to be transacted at nor the purpose of any
regular or special meeting of the Board or any committee designated by the Board
need be specified in the waiver of notice of such meeting.
3.7.2 BY ATTENDANCE
A Director's attendance at or participation in a Board or committee meeting
shall constitute a waiver of notice of such meeting, unless the Director at the
beginning of the meeting, or promptly upon his or her arrival, objects to
holding the meeting or transacting business at such meeting and does not
thereafter vote for or assent to action taken at the meeting.
3.8 QUORUM
A majority of the number of Directors fixed by or in the manner provided in
these Bylaws shall constitute a quorum for the transaction of business at any
Board meeting but, if less than a majority are present at a meeting, a majority
of the Directors present may adjourn the meeting from time to time without
further notice. A majority of the number of Directors composing any committee
of the Board, as established and fixed by resolution of the Board, shall
constitute a quorum for the transaction of business at any meeting of such
committee but, if less than a majority are present at a meeting, a majority of
such Directors present may adjourn the committee meeting from time to time
without further notice.
3.9 MANNER OF ACTING
If a quorum is present when the vote is taken, the act of the majority of
the Directors present at a Board or committee meeting shall be the act of the
Board or such committee, unless the vote of a greater number is required by
these Bylaws, the Articles of Incorporation or the Delaware Revised Statutes.
7
3.10 PRESUMPTION OF ASSENT
A Director of the Corporation who is present at a Board or committee
meeting at which any action is taken shall be deemed to have assented to the
action taken unless (a) the Director objects at the beginning of the meeting, or
promptly upon the Director's arrival, to holding the meeting or transacting any
business at such meeting, (b) the Director's dissent or abstention from the
action taken is entered in the minutes of the meeting, or (c) the Director
delivers written notice of the Director's dissent or abstention to the presiding
officer of the meeting before its adjournment or to the Corporation within a
reasonable time after adjournment of the meeting. The right of dissent or
abstention is not available to a Director who votes in favor of the action
taken.
3.11 ACTION BY BOARD OR COMMITTEES WITHOUT A MEETING
Any action that could be taken at a meeting of the Board or of any
committee created by the Board may be taken without a meeting if one or more
written consents setting forth the action so taken are signed by each of the
Directors or by each committee member either before or after the action is taken
and delivered to the Corporation. Action taken by written consent of Directors
without a meeting is effective when the last Director signs the consent, unless
the consent specifies a later effective date. Any such written consent shall be
inserted in the minute book as if it were the minutes of a Board or a committee
meeting.
3.12 RESIGNATION
Any Director may resign from the Board or any committee of the Board at any
time by delivering either oral tender of resignation at any meeting of the Board
or any committee, or written notice to the Chairman of the Board, the President,
the Secretary or the Board. Any such resignation is effective upon delivery
thereof unless the notice of resignation specifies a later effective date and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
3.13 REMOVAL
At a meeting of shareholders called expressly for that purpose, one or more
members of the Board, including the entire Board, may be removed with or without
cause (unless the Articles of Incorporation permit removal for cause only) by
the holders of the shares entitled to elect the Director or Directors whose
removal is sought if the number of votes cast to remove the Director exceeds the
number of votes cast not to remove the Director.
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3.14 VACANCIES
If a vacancy occurs on the Board, including a vacancy resulting from an
increase in the number of Directors, the Board may fill the vacancy, or, if the
Directors in office constitute fewer than a quorum of the Board, they may fill
the vacancy by the affirmative vote of a majority of all the Directors in
office. The shareholders may fill a vacancy only if there are no Directors in
office. A Director elected to fill a vacancy shall serve only until the next
election of Directors by the shareholders.
3.15 EXECUTIVE AND OTHER COMMITTEES
3.15.1 CREATION OF COMMITTEES
The Board, by resolution adopted by the greater of a majority of the
Directors then in office and the number of Directors required to take action in
accordance with these Bylaws, may create standing or temporary committees,
including an Executive Committee, and appoint members from its own number and
invest such committees with such powers as it may see fit, subject to such
conditions as may be prescribed by the Board, the Articles of Incorporation,
these Bylaws and applicable law. Each committee must have one or more members,
who shall serve at the pleasure of the Board.
3.15.2 AUTHORITY OF COMMITTEES
Each Committee shall have and may exercise all the authority of the Board
to the extent provided in the resolution of the Board creating the committee and
any subsequent resolutions adopted in like manner, except that no such committee
shall have the authority to: (1) authorize or approve a distribution except
according to a general formula or method prescribed by the Board, (2) approve or
propose to shareholders actions or proposals required by the Delaware Revised
Statutes to be approved by shareholders, (3) fill vacancies on the Board or any
committee thereof, (4) amend the Articles of Incorporation (5) adopt, amend or
repeal Bylaws, (6) approve a plan of merger not requiring shareholder approval,
or (7) authorize or approve the issuance or sale of contract for sale of shares,
or determine the designation and relative rights, preferences and limitations of
a class or series of shares except that the Board may authorize a committee or a
senior executive officer of the Corporation to do so within limits specifically
prescribed by the Board.
3.15.3 MINUTES OF MEETINGS
All committees shall keep regular minutes of their meetings and shall cause
them to be recorded in books kept for that purpose.
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3.15.4 REMOVAL
The Board may remove any member of any committee elected or appointed by it
but only by the affirmative vote of the greater of a majority of Directors then
in office and the number of Directors required to take action in accordance with
these Bylaws.
3.16 COMPENSATION
By Board resolution, Directors and committee members may be paid either
expenses, if any, of attendance at each Board or committee meeting, or a fixed
sum for attendance at each Board or committee meeting, or a stated salary as
Director or a committee member, or a combination of the foregoing. No such
payment shall preclude any Director or committee member from serving the
Corporation in any other capacity and receiving compensation therefore.
SECTION 4. OFFICERS
4.1 APPOINTMENT AND TERM
The officers of the Corporation shall be those officers appointed from time
to time by the Board or by any other officer empowered to do so. The Board shall
have sole power and authority to appoint executive officers. As used herein,
the term "executive officer" shall mean the President, the chief financial
officer and any other officer designated by the Board as an executive officer.
The Board or the President may appoint such other officers to hold office for
such period, have such authority and perform such duties as may be prescribed.
The Board may delegate to any other officer the power to appoint any subordinate
officers and to prescribe their respective terms of office, authority and
duties. Any two or more offices may be held by the same person. Unless an
officer dies, resigns or is removed from office, he or she shall hold office
until his or her successor is appointed.
4.2 RESIGNATION
Any officer may resign at any time by delivering written notice to the
Corporation. Any such resignation is effective upon delivery, unless the notice
of resignation specifies a later effective date, and, unless otherwise
specified, the acceptance of such resignation shall not be necessary to make it
effective.
4.3 REMOVAL
Any officer may be removed by the Board at any time, with or without cause.
An officer or assistant officer, if appointed by another officer, may be removed
at any time, with or without cause, by any officer authorized to appoint such
officer or assistant officer.
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4.4 CONTRACT RIGHTS OF OFFICERS
The appointment of an officer does not itself create contract rights.
4.5 CHAIRMAN OF THE BOARD
If appointed, the Chairman of the Board shall perform such duties as shall
be assigned to him or her by the Board from time to time, and shall preside over
meetings of the Board and shareholders unless another officer is appointed or
designated by the Board of Chairman of such meetings.
4.6 PRESIDENT
The President shall be the chief executive officer of the Corporation
unless some other offices is to designated by the Board, shall preside over
meetings of the Board and shareholders in the absence of a Chairman of the
Board, and, subject to the Board's control, shall supervise and control all the
assets, business and affairs of the Corporation. In general, the President
shall perform all duties incident to the office of President and such other
duties as are prescribed by the Board from time to time. If no Secretary has
been appointed, the President shall have responsibility for the preparation of
minutes of meetings of the Board and shareholders and for authentication of the
records of the Corporation.
4.7 VICE PRESIDENT
In the event of the death of the President or his or her inability to act,
the Vice President (or if there is more than one Vice President, the Vice
President who was designated by the Board as the successor to the President, or
if no Vice President is so designated, the Vice President first elected to such
office) shall perform the duties of the President, except as may be limited by
resolution of the Board, with all the powers of and subject to all the
restrictions upon the President. Vice-Presidents shall perform such other
duties as from time to time may be assigned to them by the President or by or at
the direction of the Board.
4.8 SECRETARY
The Secretary shall be responsible for preparation of minutes of the
meetings of the Board and shareholders, maintenance of the Corporation records
and stock registers, and authentication of the Corporation's records, and shall
in general perform all duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him or her by the President or by
or at the direction of the Board. In the absence of the Secretary, an Assistant
Secretary may perform the duties of the Secretary.
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4.9 TREASURER
The Treasurer shall have charge and custody of and be responsible for all
funds and securities of the Corporation, receive and give receipts for moneys
due and payable to the Corporation from any source whatsoever, and deposit all
such moneys in the name of the Corporation in banks, trust companies or other
depositories selected in accordance with the provisions of these Bylaws, and in
general perform all the duties incident to the office of Treasurer and such
other duties as from time to time may be assigned to him or her by the President
or by or at the direction of the Board. In the absence of the Treasurer, an
Assistant Treasurer may perform the duties of the Treasurer.
4.10 SALARIES
The salaries of the officers shall be fixed from time to time by the Board
or by any person or persons to whom the Board has delegated such authority. No
officer shall be prevented from receiving such salary by reason of the fact that
he or she is also a Director of the Corporation.
4.11 LOANS BY THE CORPORATION
No loans shall be made by the Corporation to its Officers or Directors.
SECTION 5. CONTRACTS, LOANS, CHECKS AND DEPOSITS
5.1 CONTRACTS
The Board may authorize any officer or officers, or agent or agents, to
enter into any contract or execute and deliver any instrument in the name of and
on behalf of the Corporation. Such authority may be general or confined to
specific instances.
5.2 LOANS TO THE CORPORATION
No loans shall be contracted on behalf of the Corporation and no evidences
of indebtedness shall be issued in its name unless authorized by a resolution of
the Board. Such authority may be general or confined to specific instances.
5.3 CHECKS, DRAFTS, ETC.
All checks, drafts or other orders for the payment of money, notes or other
evidences of indebtedness 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 is from time to time determined by resolution of the Board.
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5.4 DEPOSITS
All funds of the Corporation not otherwise employed shall be deposited from
time to time to the credit of the Corporation in such banks, trust companies or
other depositories as the Board may authorize.
SECTION 6. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.1 ISSUANCE OF SHARES
No shares of the Corporation shall be issued unless authorized by the
Board, or by a committee designated by the Board to the extent such committee is
empowered to do so.
6.2 CERTIFICATES FOR SHARES
Certificates representing shares of the Corporation shall be signed by any
two of the President, Vice-President, Secretary or Treasurer as designated by
the Board from time to time. Any certificate that is countersigned or otherwise
authenticated by a transfer agent or transfer clerk, or by a registrar may have
the facsimile of the officers' signatures printed or lithographed up on the
certificates in lieu of actual signatures. Certificates shall include on their
face written notice of any restrictions that may be imposed on the
transferability of such shares. All certificates shall be consecutively
numbered or otherwise identified.
6.3 STOCK RECORDS
The stock transfer books shall be kept at the principal office at the
Corporation or at the office of the Corporation's transfer agent or registrar.
The name and address of each person to whom certificates for shares are issued,
together with the class and number of shares represented by each such
certificate and the date of issue thereof shall be entered on the stock transfer
books of the Corporation. The person in whose name shares stand on the books of
the Corporation shall be deemed by the Corporation to be the owner thereof for
all purposes.
6.4 TRANSFER OF SHARES
The transfer of shares of the Corporation shall be made only on the stock
transfer books of the Corporation pursuant to authorization or document of
transfer made by the holder of record thereof or by his or her legal
representative, who shall furnish proper evidence of authority to transfer, or
by his or her attorney-in-fact authorized by power of attorney duly executed and
filed with the Secretary of the Corporation. All certificates surrendered to
the Corporation for transfer shall be canceled and no new certificate shall be
issued until the former certificates for a like number of shares shall have been
surrendered and canceled.
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6.5 LOST OR DESTROYED CERTIFICATES
In the case of a lost, destroyed or damaged certificate, a new certificate
may be issued in its place upon such terms and indemnity to the Corporation as
the Board may prescribe.
SECTION 7. BOOKS AND RECORDS
The Corporation shall:
(a) Keep as permanent records minutes of all meetings of its shareholders
and the Board, a record of all actions taken by the shareholders or the
Board without a meeting, and a record of all actions taken by a committee
of the Board exercising the authority of the Board on behalf of the
Corporation.
(b) Maintain appropriate accounting records.
(c) Maintain a record of its shareholders, in a form that permits
preparation of a list of the names and addresses of all shareholders, in
alphabetical order by class of shares showing the number and class of
shares held by each; provided, however, such record may be maintained by an
agent of the Corporation.
(d) Maintain its records in written form or in another form capable of
conversion into written form within a reasonable time.
(e) Keep a copy of the following records at its principal office:
1. the Articles of Incorporation and all amendments thereto as
currently in effect; 2. these Bylaws and all amendments
thereto as currently in effect;
3. the minutes of all meetings of shareholders and records of
all action taken by shareholders without a meeting, for the
past three years;
4. the financial statements for the past three years;
5. all written communications to shareholders generally within
the past three years;
6. a list of the names and business addresses of the current
Directors and officers; and
7. the most recent annual report delivered to the Delaware
Secretary of State.
SECTION 8. ACCOUNTING YEAR
The accounting year of the Corporation shall be set by resolution of the
Board of Directors.
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SECTION 9. SEAL
The Board may provide for a corporate seal that shall consist of the name
of the Corporation, the state of its incorporation, and the year of its
incorporation.
SECTION 10. INDEMNIFICATION
10.1 RIGHT TO INDEMNIFICATION
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Corporation) by reason of the fact that such person is or was a Director,
Trustee, Officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a Director, Trustee, Officer, employee or
agent of another Corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgment, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the Corporation, an with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which such person reasonably believed to be in or not
opposed to the best interests of the Corporation, and with respect to any
criminal action proceeding, had reasonable cause to believe that such person's
conduct was unlawful.
10.2 RESTRICTIONS ON INDEMNIFICATION
No indemnification shall be provided to any such indemnitee for acts or
omissions of the indemnitee finally adjudged to be intentional misconduct or a
knowing violation of law, for conduct of the indemnitee finally adjudged to be
liable for gross negligence or willful misconduct in the performance of such
person's duty to the Corporation unless and only to the extent that the court in
which such action or suit was brought shall determine, upon application, that
despite circumstances of case, such person is fairly and reasonably entitled to
indemnity for such expenses as such court shall deem proper. The termination of
any action or suit by judgment or settlement shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which such
person reasonably believed to be in or not opposed to the best interests of the
Corporation.
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10.3 SUCCESSFUL DEFENSE
To the extent that a Director, Trustee, Officer, employee or agent of the
Corporation has been successful on the merits or otherwise, in whole or in part
in defense of any action, suit or proceeding referred to in Sections 10.1 or
10.2 above, or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
10.4 AUTHORIZATION
The right to indemnification conferred in this Section (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the Director, Trustee, Officer,
employee or agent is proper in the circumstances because such person has met the
applicable standard of conduct set forth in this Section. Such determination
shall be made (a) by the Board of Directors of the Corporation by a majority
vote of a quorum consisting of Directors who were not parties to such action,
suit or proceeding, or (b) if such a quorum is not obtainable, by a majority of
the Directors who were not parties to such action, suit or proceeding, or (c) by
independent legal counsel (selected by one or more of the Directors, whether or
not a quorum an whether or not disinterested) in a written opinion, or (d) by
the shareholders. Anyone making such a determination under this Section 10.4
may determine that a person has met the standards therein set forth as to some
claims, issues or matters but not as to others, and may reasonably prorate
amounts to be paid as indemnification.
10.5 ADVANCEMENT OF EXPENSES
The right to indemnification conferred in this Section shall include the
right to be paid by the Corporation the expenses reasonably incurred in
defending any proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"). As advancement of expenses shall be made upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal that such indemnitee is not entitled to be indemnified.
10.6 NONEXCLUSIVITY OF RIGHTS
The right to indemnification and the advancement of expenses conferred in
this Section shall not be exclusive of any other right that any person may have
or hereafter acquire under any statute, provision of the Articles of
Incorporation or Bylaws of the Corporation, general or specific action of the
Board or shareholders, contract or otherwise.
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10.7 INSURANCE, CONTRACTS AND FUNDING
The Corporation may maintain insurance, at its expense, to protect itself
and any Director, officer, partner, trustee, employee or agent of the
Corporation or another Corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise against any expense, liability or loss, whether
or not the Corporation would have the authority or right to indemnify such
person against such expense, liability or loss under the Delaware Revised
Statutes or other law. The Corporation may enter into contracts with any
Director, officer, partner, trustee, employee or agent of the Corporation in
furtherance of the provisions of this section and may create a trust fund, grant
a security interest, or use other means (including, without limitation, a letter
of credit) to ensure the payment of such amounts as may be necessary to effect
indemnification as provided in this Section.
10.8 IDENTIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION
In addition to the rights of indemnification set forth in subsection 10.1,
the Corporation may, by action of the Board, grant rights to indemnification and
advancement of expenses to employees and agents or any class or group of
employees and agents of the Corporation (a) with the same scope and effect as
the provisions of this Section with respect to indemnification and the
advancement of expenses of Directors and officers of the Corporation; (b)
pursuant to rights granted or provided by the Delaware Revised Statutes or (c)
as are otherwise consistent with law.
10.9 PERSONS SERVING OTHER ENTITIES
Any person who, while a Director or officer of the Corporation, is or was
serving (a) as a Director, officer, employee or agent of another Corporation of
which a majority of the shares entitled to vote in the election of its directors
is held by the Corporation or (b) as a partner, trustee or otherwise in an
executive or management capacity in a partnership, joint venture, trust,
employee benefit plan or other enterprise of which the Corporation or a majority
owned subsidiary of the Corporation is a general partner or has a majority
ownership shall conclusively be deemed to be so serving at the request of the
Corporation and entitled to indemnification and the advancement of expenses
under subsections 10.1 and 10.5 of this Section.
SECTION 11. REIMBURSEMENT OF DISALLOWED EXPENSES
If any salary, payment, reimbursement, employee fringe benefit, expense
allowance payment, or other expense incurred by the Corporation for the benefit
of an employee is disallowed in whole or in part as a deductible expense of the
Corporation for Federal Income Tax purposes, the employee shall reimburse the
Corporation, upon notice and demand, to the full extent of the disallowance.
This legally enforceable obligation is in accordance with the provisions of
Revenue Ruling 69-115, 1969-1 C.B. 50, and is for the purpose of entitling such
employee to a business expense deduction for the taxable year in which the
repayment is made to the Corporation. In this manner, the Corporations shall be
protected from having to bear the entire burden of disallowed expense items.
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SECTION 12. AMENDMENTS
These Bylaws may be altered, amended or repealed and new Bylaws may be
adopted by the Board, except that the Board may not repeal or amend any Bylaw
that the shareholders have expressly provided, in amending or repealing such
Bylaw, may not be amended or repealed by the Board. The shareholders may also
alter, amend and repeal these Bylaws or adopt new Bylaws. All Bylaws made by
the Board may be amended, repealed, altered or modified by the shareholders.
The foregoing Bylaws were adopted by the Board on March 24, 2003.
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