Exhibit 3.1
AMENDED AND RESTATED
BY-LAWS
OF
e-NET, INC.
ARTICLE I. OFFICES
1.1 REGISTERED OFFICE. The corporation shall maintain a registered
office and registered agent in the State of Delaware. The corporation may have
other offices, including its executive offices, either within or without the
State of Delaware at such place or places as the Board of Directors may from
time to time appoint or the business of the corporation may require.
ARTICLE II. MEETINGS OF STOCKHOLDERS
2.1 ANNUAL MEETINGS. An annual meeting of stockholders for the
election of directors and for the transaction of any other proper business shall
be held at the executive office of the corporation or at such other place and at
such time and date as the Board of Directors, by resolution, shall determine and
shall cause to be specified in the notice of the meeting, provided that in the
absence of any contrary determination by the Board of Directors the date of the
annual meeting shall be October 21 of each year.
If the date of the annual meeting shall fall upon a legal holiday,
the meeting shall be held on the next succeeding business day.
2.2 SPECIAL MEETINGS. Special meetings of the stockholders for
any purpose or purposes may be held at the call of the President or by
resolution of the Board of Directors, or by a committee of the Board of
Directors that has been duly designated by the Board of Directors and whose
power and authority, as expressly provided in a resolution of the Board of
Directors, includes the power to call such meetings. Such meetings shall be held
at such time and place within or without the State of Delaware as shall be
stated in the notice of the meeting.
2.3 VOTING AND PROXIES. Except as otherwise provided by the
Certificate of Incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of stock entitled
to vote on the matter and held by him. Each stockholder entitled to vote at a
meeting of stockholders or to express consent or dissent to corporate activities
in writing without a meeting may authorize another person or persons to act for
him by proxy, but no proxy shall be voted or acted upon after three years from
its date unless such
proxy provides for a longer period. A proxy shall be irrevocable if it states
that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A stockholder may
revoke any proxy that is not irrevocable by attending the meeting and voting in
person or by filing an instrument in writing revoking the proxy or by delivering
a proxy in accordance with applicable law bearing a later date to the Secretary
of the corporation. Voting at meetings of stockholders need not be by written
ballot and, unless otherwise required by law, need not be conducted by
inspectors of election unless so determined by the holders of shares of stock
having a majority of the votes which could be cast by the holders of all
outstanding shares of stock entitled to vote thereon which are present in person
or by proxy at such meeting. All elections for directors shall be decided by
plurality vote; all other elections and questions shall be decided by majority
vote, except as otherwise provided by the Certificate of Incorporation, these
By-Laws or the laws of the State of Delaware.
2.4 STOCKHOLDER LIST. A complete list of the stockholders
entitled to vote at the ensuing election, arranged in alphabetical order with
the address of each and the number of shares held by each, shall be open to
examination by any stockholder for any purpose germane to the meeting during
ordinary business hours for a period of at least ten days prior to the meeting
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof and may be
inspected by any stockholder who is present. Upon the willful neglect or refusal
of the directors to produce such a list at any meeting for the election of
directors, they shall be ineligible for election to any office at such meeting.
The stock ledger shall be the only evidence as to who are the stockholders
entitled to examine the stock ledger, the list of stockholders or the books of
the corporation, or to vote in person or by proxy at any meeting of
stockholders.
2.5 QUORUM. Except as otherwise required by the laws of the State
of Delaware, the Certificate of Incorporation or these By-Laws, the presence in
person or by proxy of stockholders holding a majority of stock of the
corporation entitled to vote shall constitute a quorum at all meetings of
stockholders. In case a quorum shall not be present at any meeting, a majority
in interest of stockholders entitled to vote thereat, present in person or by
proxy, shall have power to adjourn the meeting from time to time in the manner
provided by Section 2.6 of these By-Laws, until the requisite amount of stock
entitled to vote shall be present. Shares of its own stock belonging to the
corporation or to another corporation, if a majority of the shares entitled to
vote in the election of directors of such other corporation is held, directly or
indirectly, by the corporation, shall neither be entitled to vote nor be counted
for quorum purposes; provided, however, that the foregoing shall not
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limit the right of the corporation to vote stock, including but not limited to
its own stock, held by it in a fiduciary capacity.
2.6 ADJOURNMENT. Any meeting of stockholders, annual or special,
may adjourn from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At any
adjourned meeting at which the requisite amount of stock entitled to vote shall
be represented, any business may be transacted which might have been transacted
at the meeting as originally noticed. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
2.7 NOTICE OF MEETINGS. Written notice of all meetings stating
the place, date and time of the meeting and, in the case of a special meeting,
the purpose or purposes for which the meeting is called, shall be given to each
stockholder entitled to vote thereat, at his address as it appears on the
records of the corporation, not less than ten or more than sixty days before the
date of the meeting.
2.8 ACTION WITHOUT MEETING. Unless otherwise provided by the
Certificate of Incorporation, any action required or which may be taken at an
annual or special meeting of stockholders may be taken without a meeting and
without prior notice and a vote if a consent or consents in writing setting
forth the action so taken shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted, and such consent or consents are delivered (by
hand or by certified or registered mail, return receipt requested) to the
corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the corporation having
custody of the book in which proceedings of minutes of stockholders are
recorded. Prompt notice of the taking of corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
2.9 ORGANIZATION. Meetings of stockholders shall be presided over
by the Chairman of the Board, if any, or in his absence by the Vice Chairman of
the Board, if any, or in his absence by the President, or in his absence by a
Vice President, or in the absence of the foregoing persons by a chairman
designated by the Board of Directors, or in the absence of such designation by a
chairman chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his absence the chairman of the meeting may appoint any person
to act as secretary of the meeting. The chairman of the meeting shall announce
at the meeting of
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stockholders the date and time of the opening and the closing of the polls for
each matter upon which the stockholders will vote.
2.10 FIXING RECORD DATE. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, 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 change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors and which
record date: (1) in the case of determination of stockholders entitled to vote
at any meeting of stockholders or adjournment thereof, shall, unless otherwise
required by law, not be more than sixty nor less than ten days before the date
of such meeting; (2) in the case of determination of stockholders entitled to
express consent to corporate action in writing without a meeting, shall not be
more than ten days from the date upon which the resolution fixing the record
date is adopted by the Board of Directors; and (3) in the case of any other
action, shall not be more than sixty days prior to such other action. If no
record date is fixed: (1) the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held; (2) the record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting
when no prior action of the Board of Directors is required by law, shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the corporation in accordance with
applicable law, or, if prior action by the Board of Directors is required by
law, shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action; and (3) the record
date for determining stockholders 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. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
2.11 CONDUCT OF MEETINGS. The Board of Directors of the
corporation may adopt by resolution such rules and regulations for the conduct
of meetings of stockholders as it shall deem appropriate. Except to the extent
inconsistent with such rules and regulations as adopted by the Board of
Directors, the chairman of any meeting of stockholders shall have the right and
authority to prescribe such rules, regulations and procedures and to do all such
acts as, in the judgment of such chairman, are appropriate for the proper
conduct of the meeting.
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Such rules, regulations or procedures, whether adopted by the Board of Directors
or prescribed by the chairman of the meeting, may include, without limitation,
the following: (i) the establishment of an agenda or order of business for the
meeting; (ii) rules and procedures for maintaining order at the meeting and the
safety of those present; (iii) limitations on attendance at or participation in
the meeting to stockholders of record of the corporation, their duly authorized
and constituted proxies or such other persons as the chairman of the meeting
shall determine; (iv) restrictions on entry to the meeting after the time fixed
for the commencement thereof; and (v) limitations on the time allotted to
questions or comments by participants. Unless and to the extent determined by
the Board of Directors or the chairman of the meeting, meetings of stockholders
shall not be required to be held in accordance with the rules of parliamentary
procedure.
2.12 ADVANCE NOTICE OF STOCKHOLDER BUSINESS. At an annual meeting
of the stockholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before an annual
meeting, business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (c) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
corporation, not less than 60 days or more than 90 days prior to the meeting;
provided, however, that in the event that less than 70 days' notice or prior
public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the
close of business on the tenth day following the day on which such notice of the
date of the annual meeting was mailed or such public disclosure was made. A
stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (a) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (b) the name and address, as
they appear on the corporation's books, of the stockholder proposing such
business, (c) the class and number of shares of the corporation which are
beneficially owned by the stockholder, and (d) any material interest of the
stockholder in such business. Notwithstanding anything in these By-Laws to the
contrary, no business shall be conducted at any annual meeting except in
accordance with the procedures set forth in this Section 2.12. The chairman of
the annual meeting shall, if the facts warrant, determine and declare to the
meeting that business was not properly brought before the meeting and in
accordance with the provisions of this Section 2.12, and if he should so
determine, he shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
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2.13 NOTICE OF STOCKHOLDER NOMINEES. Only persons who are
nominated in accordance with the procedures set forth in this Section 2.13 shall
be eligible for election as directors. Nominations of persons for election to
the Board of Directors of the corporation may be made at a meeting of
stockholders by or at the direction of the Board of Directors or by any
stockholder of the corporation entitled to vote for the election of directors at
the meeting who complies with the notice procedures set forth in this Section
2.13. Such nominations, other than those made by or at the direction of the
Board of Directors, shall be made pursuant to timely notice in writing to the
Secretary of the corporation. To be timely, a stockholder's notice shall be
delivered to or mailed and received at the principal executive offices of the
corporation not less than 60 days or more than 90 days prior to the meeting;
provided, however, that in the event that less than 70 days' notice or prior
public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the
close of business on the tenth day following the day on which such notice of the
date of the meeting was mailed or such public disclosure was made. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a director, (i) the name,
age, business address and residence address of such person, (ii) the principal
occupation or employment of such person, (iii) the class and number of shares of
the corporation which are beneficially owned by such person and (iv) any other
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (including without limitation such persons' written consent to being
named in the proxy statement as a nominee and to serving as a director if
elected); and (b) as to the stockholder giving the notice (i) the name and
address, as they appear on the corporation's books, of such stockholder and (ii)
the class and number of shares of the corporation which are beneficially owned
by such stockholder. At the request of the Board of Directors, any person
nominated by the Board of Directors for election as a director shall furnish to
the Secretary of the corporation that information required to be set forth in a
stockholder's notice of nomination that pertains to the nominee. No person shall
be eligible for election as a director of the corporation unless nominated in
accordance with the procedures set forth in this Section 2.13. The chairman of
the meeting shall, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the procedures prescribed by
these By-Laws, and if he should so determine, he shall so declare to the meeting
and the defective nomination shall be disregarded.
ARTICLE III. DIRECTORS
3.1 NUMBER AND TERM. The Board of Directors and committees shall
consist of one or more members, the number thereof to be determined from time to
time by resolution of the Board of Directors. The board shall be elected at
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the annual meeting of stockholders and each director shall hold office for a
term of one year or until his successor is elected and qualified, or until his
earlier resignation or removal. Directors need not be stockholders.
3.2 RESIGNATIONS. Any director may resign at any time. Such
resignation shall be made in writing and shall take effect at the time specified
therein, or if no time be specified, at the time of its receipt by the President
or Secretary. The acceptance of a resignation shall not be necessary to make it
effective.
3.3 VACANCIES. Any newly created directorship or vacancy in the
Board of Directors occurring for whatever reason may be filled by a majority
vote of the remaining directors in office, though less than a quorum, or by a
plurality of the votes cast at a meeting of stockholders, and each director so
elected shall hold office for the unexpired term of the director he replaced or
until his successor is elected and qualified, or until his earlier resignation
or removal.
3.4 REMOVAL. A director may be removed either for or without
cause at any time by the affirmative vote of the holders of a majority of all
the shares of stock outstanding and entitled to vote at a special meeting of the
stockholders called for that purpose.
3.5 COMMITTEES. The Board of Directors may, by resolution passed
by a majority of the whole Board of Directors, designate one or more committees,
each committee to consist of one or more directors. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace an absent or disqualified member at any meeting of the committee. In the
absence or disqualification of any member of such committee, the members thereof
present at the meeting and not disqualified from voting, whether constituting a
quorum or not, may unanimously appoint another member of the Board of Directors
to act in the place of such absent or disqualified member, any such committee,
to the extent provided in the resolution, shall have and may exercise the powers
of the Board of Directors in the management of business and affairs of the
corporation and may require it. Unless the Board of Directors otherwise
provides, each committee designated by the Board of Directors may make, alter
and repeal rules for the conduct of its business. In the absence of such rules
each committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to the relevant provisions of this
Article III of the By-Laws.
3.6 MEETINGS. Regular meetings of the directors may be held
without notice at such place and time as shall be determined by resolution of
the director, and if so determined notice need not be given.
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Special meetings of the Board may be called by the President or by
the Secretary on the written request of any two directors, on at least one day's
prior written notice to each director, and shall be held at such place as shall
be stated in the call of the meeting. Such notice shall be personally delivered,
mailed by registered or certified mail (return receipt requested and postage
prepaid), sent by telegram (with messenger service specified), sent by
telecopier (with a confirming copy sent by regular mail), or sent by prepaid
overnight courier service. If mailed, such notice shall be deemed to be given
five days after being sent, if sent by personal delivery or telecopier, such
notice shall be deemed to be given when delivered, and if sent by prepaid
courier or telegraph service, such notice shall be deemed to be given two days
following deposit with the courier or telegraph service.
3.7 QUORUM AND VOTING. A majority of the directors shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors. If at any meeting of the Board of Directors there shall be less
than a quorum present, a majority of those present may adjourn the meeting from
time to time until a quorum is obtained and no further notice thereof need be
given other than by announcement at the meeting so adjourned. Except where the
Certificate of Incorporation or these By-Laws provide otherwise, the vote of a
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
3.8 COMPENSATION. Directors shall not receive any stated salary
for their services as directors or as members of committees, but by resolution
of the Board, a fixed fee and expenses of attendance may be allowed for
attendance at each meeting. Nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity as an
officer, agent, or otherwise and from receiving compensation therefor.
3.9 ACTION WITHOUT MEETING. Unless otherwise required by the
Certificate of Incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board of Directors or any committee thereof
may be taken without a meeting if all members of the Board or committee, as the
case may be, consent thereto in writing and the writing or writings are filed
with the minutes of proceedings of the Board of Directors or such committee.
3.10 ACTION BY TELEPHONE CONFERENCE. Members of the Board of
Directors or any committee designated by the Board of Directors may participate
in any meeting thereof by means of conference telephone or similar
communications equipment in which all persons participating can hear each other.
Participation in a meeting pursuant to this Section 3.10 shall constitute
presence in person at such meeting.
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3.11 CONDUCT OF MEETINGS. Meetings of the Board of Directors shall
be presided over by the Chairman of the Board, if any, or in his absence by the
Vice Chairman of the Board, if any, or in his absence by the President, or in
their absence by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
ARTICLE IV. OFFICERS
4.1 OFFICERS. The officers of the corporation shall be a
President, a Treasurer, and a Secretary, all of whom shall be elected by the
Board of Directors. In addition, the Board of Directors may elect a Chairman,
one or more Vice Presidents and such Assistant Secretaries and Assistant
Treasurers as it may deem proper. Each officer shall hold office until the first
meeting of the Board of Directors after the annual meeting of stockholders
succeeding his or her election and his successor is elected and qualified or
until his early resignation or removal. None of the officers of the corporation
need be directors. Any number of offices may be held by the same person. Any
officer may resign at any time upon written notice to the corporation. The Board
of Directors may remove any officer with or without cause at any time, but such
removal shall be without prejudice to the contractual rights of such officer, if
any, with the corporation. Any vacancy occurring in any office of the
corporation by death, resignation, removal or otherwise may be filled for the
unexpired portion of the term by the Board of Directors at any regular or
special meeting.
4.2 POWERS AND DUTIES OF OFFICERS. The officers of the
corporation shall have such powers and duties in the management of the
corporation as may be prescribed in a resolution by the Board of Directors and,
to the extent not so provided, as generally pertain to their respective offices,
subject to the control of the Board of Directors. The Board of Directors may
require any officer, agent or employee to give security for the faithful
performance of his duties.
ARTICLE V. STOCK
5.1 CERTIFICATES OF STOCK. Certificates of stock, signed by or in
the name of the corporation by the Chairman or Vice Chairman of the Board of
Directors, if any, or the President or Vice President, and by the Treasurer or
an Assistant Treasurer, or the Secretary or an Assistant Secretary, shall be
issued to each stockholder, certifying the number of shares owned by him in the
corporation. Any or all signatures on any stock certificate may be facsimiles.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent, or registrar before such certificate is issued, it
may be issued by the corporation with
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the same effect as if he were such officer, transfer agent, or registrar at the
date of issue.
5.2 LOST CERTIFICATES. A new certificate of stock may be issued
in the place of any certificate theretofore issued by the Corporation and
alleged to have been lost, stolen or destroyed. The corporation may require the
owner of the lost, stolen or destroyed certificate or his legal representative
to give the corporation a bond sufficient to indemnify it against any claim that
may be made against it on account of the alleged loss, theft or destruction of
any such certificates or the issuance of any new certificates.
ARTICLE VI. INDEMNIFICATION
6.1 RIGHT TO INDEMNIFICATION. The corporation shall, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended from time to time, indemnify, defend and hold harmless any
person who was or is made or is threatened to be made a party or is otherwise
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding") by reason of the fact that he,
or a person for whom he is the legal representative, is or was a director or
officer of the corporation or is or was serving at the request of the
corporation as a director or officer of another corporation, of a limited
liability company or of a partnership, joint venture, trust, enterprise or
nonprofit entity, including service with respect to employee benefit plans,
against all liability and loss suffered and expenses (including attorneys' fees)
reasonably incurred by such person. The corporation shall be required to
indemnify a person in connection with a Proceeding (or part thereof) initiated
by such person only if the Proceeding (or part thereof) was authorized by the
Board of Directors of the corporation.
6.2 PREPAYMENT OF EXPENSES. The corporation may, in its
discretion, pay the expenses (including attorneys' fees) incurred in defending
any proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a director or officer in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking
by the director or officer to repay all amounts advanced if it should be
ultimately determined that the director or officer is not entitled to be
indemnified under this Article or otherwise.
6.3 NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person
by this Article VI shall not be exclusive of any other rights which such person
may have or hereafter acquire under any statute, provision of the certificate of
incorporation, these by-laws, agreement, vote of stockholders or disinterested
directors or otherwise.
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6.4 OTHER INDEMNIFICATION. The corporation's obligation, if any,
to indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, limited liability company,
partnership, joint venture, trust, enterprise or nonprofit entity shall be
reduced by any amount such person may collect as indemnification from such other
corporation, partnership, joint venture, trust, enterprise or nonprofit
enterprise.
6.5 AMENDMENT OR REPEAL. Any repeal or modification of the
foregoing provisions of this Article VI shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to the time of such repeal or modification.
ARTICLE VII. MISCELLANEOUS
7.1 SEAL. The corporate seal shall contain the name of the
corporation, and shall be in such form as may be approved from time to time by
the Board of Directors. The seal may be used by causing it or a facsimile to be
impressed, affixed or reproduced.
7.2 FISCAL YEAR. The fiscal year of the corporation shall close
on such date as the Board of Directors may from time to time determine and
specify by resolution, provided that in the absence of any contrary
determination by the Board of Directors the fiscal year shall close on March 31.
7.3 NOTICE AND WAIVER OF NOTICE. Unless otherwise specifically
provided in these By-Laws, any notice required by these By-Laws shall be deemed
to be sufficient if given by depositing the same in the United States mail,
postage prepaid, addressed to the person entitled thereto at his address as it
appears on the records of the corporation, and such notice shall be deemed to
have been given on the day of mailing. Stockholders not entitled to vote shall
not be entitled to receive notice of any meetings except as otherwise provided
by Statute.
Whenever notice is required to be given under the provisions of
any law or under the provisions of the Certificate of Incorporation or these
By-Laws, a waiver thereof in writing signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at nor the purpose of any
regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice.
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7.4 INTERESTED DIRECTORS AND QUORUM. No contract or transaction
between the corporation and one or more of its directors or officers, or between
the corporation and any other corporation, limited liability company,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose, if: (1) the
material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (2) the material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (3) the contract or
transaction is fair as to the corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof, or the
stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
that authorizes the contract or transaction.
7.5 FORM OF RECORDS. Any records maintained by the corporation in
the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs, hard disk or floppy diskette, or
any other information storage device, provided that the records so kept can be
converted into clearly legible form within a reasonable time.
7.6 AMENDMENT OF BY-LAWS. These By-Laws may be altered or
repealed, and new By-Laws made, by the Board of Directors, but the stockholders
may make additional By-Laws and may alter and repeal any By-Laws whether adopted
by them or otherwise.
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