eWeb21 Corp.
A Delaware Corporation
BY LAWS
ARTICLE I
Principal Executive Office
The initial registered office of eWeb21 Corp. (the "Corporation") in the
State of Delaware shall be Corporation Service Company, 2711 Centerville Road,
Suite 400, Wilmington Delaware 19808. The principal executive office of the
Corporation shall be Technomart 546-4 Kui-dong, 21st Floor, Kwangjin-gu, Seoul,
Korea #143-721.
The Corporation may also have offices at such other places, within or
without the State of Delaware, as the board of directors shall from time to time
determine.
ARTICLE II
Stockholders
SECTION 1. Place of Meetings. All annual and special meetings of the
stockholders shall be held at the principal executive office or at such other
place within or without the State of Delaware as the board of directors may
determine and as designated in the notice of such meeting.
SECTION 2. Annual Meeting. A meeting of the stockholders for the election
of directors and for the transaction of any other business shall be held
annually at such date and time as the board of directors may determine.
SECTION 3. Special Meetings. Special meeting of the stockholders for any
purpose or purposes may be called at any time by the board of directors, or by a
committee of the board of directors which as been duly designated by the board
of directors and whose powers and authorities, as provided in a resolution of
the board of directors or in these bylaws, include the power and authority to
call such meetings, or by stockholders owning at least fifty percent (50%) of
the entire voting power of the corporation's capital stock but such special
meetings may not be called by any other person or persons.
SECTION 4. Conduct of Meetings. Annual and special meetings shall be
conducted in accordance with these bylaws or as otherwise prescribed by the
board of directors. The chairman or the chief executive officer shall preside at
such meetings.
SECTION 5. Notice of Meeting. Written notice stating the place, day and
time of the meeting and the purpose or purposes for which the meeting is called
shall be mailed by the secretary or the officer performing his duties, not less
than ten days nor more than fifty days before the meeting to each stockholder of
record entitled to vote at such meeting. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail, addressed to the
stockholder at his address as it appears on the stock transfer books or records
as of the record date prescribed in Section 6, with postage thereon prepaid. If
a stockholder be present at a meeting, or in writing waive notice thereof before
or after the meeting, notice of the meeting to such stockholder shall be
unnecessary. When any stockholders' meeting, either annual or special, is
adjourned for thirty days or more, notice of the adjourned meeting shall be
given as in the case of an original meeting. It shall not be necessary to give
any notice of the time and place of any meeting adjourned for less than thirty
days or of the business to be transacted at such adjourned meeting, other than
an announcement at the meeting at which such adjournment is taken.
SECTION 6. Fixing of Record Date. For the purpose of determining
stockholders entitled to notice of or to vote at any stockholders' meeting, or
any adjournment thereof, or stockholders entitled to receive payment of any
dividend or other distribution or allotment of any rights, or stockholders
entitled to exercise any rights in respect of any change, conversion or exchange
of stock, or in order to make a determination of stockholders for any other
proper purpose, the board of directors shall fix in advance a date as the record
date for any such determination of stockholders. Such date in any case shall be
not more than sixty days, and in case of a stockholders' meeting, not less than
ten days prior to the date on which the particular action, requiring such
determination of stockholders, is to be taken. 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. If the board does
not fix a record date and prior action by the board is required by the laws of
the State of Delaware or these Bylaws, the date for determining stockholders for
any of the aforementioned purposes shall be at the close of business on the day
on which the board adopts the resolution taking such prior action. When a
determination of stockholders entitled to vote at any stockholders' meeting has
been made as provided in this section, such determination shall apply to any
adjournment thereof.
SECTION 7. Voting Lists. The officer or agent having charge of the stock
transfer books for shares shall make, at least ten days before each
stockholders' meeting, a complete record of the stockholders entitled to vote at
such meeting or any adjournment thereof, with the address of and the number of
shares held by each. The record, for a period of ten days before such meeting,
shall be kept on file at the principal executive office, whether within or
outside the State of Delaware, and shall be subject to inspection by any
stockholder for any purpose germane to the meeting at any time during usual
business hours. Such record shall also be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any stockholder
for any purpose germane to the meeting during the whole time of the meeting. The
original stock transfer books shall be prima facie evidence as to the
stockholders entitled to examine such record or transfer books or to vote at any
stockholders' meeting.
SECTION 8. Quorum. Except as otherwise provided by law or by the
certificate of incorporation of the Corporation, one-third of the outstanding
shares entitled to vote, represented in person or by proxy, shall constitute a
quorum at a stockholders' meeting. If less than one-fourth of the outstanding
shares are represented at a meeting, a majority of the shares so represented may
adjourn the meeting from time to time without further notice. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. The stockholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
SECTION 9. Proxies. At all stockholders' meetings, a stockholder may vote
by proxy executed in writing by such stockholder or by his duly authorized
attorney in fact. Proxies solicited on behalf of the management shall be voted
as directed by such stockholder or, in the absence of such direction, as
determined by a majority of the board of directors. No proxy shall be valid
after eleven months from the date of its execution unless otherwise provided in
the proxy.
SECTION 10. Voting. At each election for directors every stockholder
entitled to vote at such election shall be entitled to one vote for each share
of stock held. Unless otherwise provided by the certificate of incorporation, by
statute, or by these bylaws, a majority of votes of the shares present in person
or by proxy at a lawful meeting and entitled to vote on the election of
directors shall be sufficient to pass on a transaction or matter, except in the
election of directors, which election shall be determined by a plurality of the
votes of the shares present in person or by proxy at the meeting and entitled to
vote on the election of directors.
SECTION 11. Voting of Shares in the Name of Two or More Persons. When
ownership of stock stands in the name of two or more persons, in the absence of
written directions to the Corporation to the contrary, at any stockholders'
meeting any one or more of such stockholders may cast, in person or by proxy,
all votes to which such ownership is entitled. In the event an attempt is made
to cast conflicting votes, in person or by proxy, by the several persons in
whose name shares of stock stand, the vote or votes to which these persons are
entitled shall be cast as directed by a majority of those holding such stock and
present in person or by proxy at such meeting, but no votes shall be cast for
such stock without the direction of such a majority.
SECTION 12. Voting of Shares by Certain Holders. Shares of capital stock
standing in the name of another corporation may be voted by any officer, agent
or proxy as these bylaws of such corporation may prescribe, or, in the absence
of such provision, as the board of directors of such corporation may determine.
Shares held by an administrator, executor, guardian or conservator may be voted
by him, either in person or by proxy, without a transfer of such shares into his
name. Shares standing in the name of a trustee may be voted by him, either in
person or by proxy, but no trustee shall be entitled to vote shares held by him
without a transfer of such shares into his name. Shares standing in the name of
a receiver may be voted by such receiver, and shares held by or under the
control of a receiver may be voted by such receiver without the transfer thereof
into his name if authority to do so is contained in an appropriate order of the
court or other public authority by which such receiver was appointed.
A stockholder whose shares are pledged shall be entitled to vote such
shares at any stockholders' meeting until such shares have been transferred into
the name of the pledgee and thereafter such pledgee shall be entitled to vote
the shares so transferred.
Neither treasury shares of its own stock held by the Corporation, nor
shares held by another corporation, if a majority of the shares entitled to vote
for the election of directors of such other corporation are held by the
Corporation, shall be voted at any stockholders' meeting or counted in
determining the total number of outstanding shares at any given time for
purposes of any meeting.
SECTION 13. Inspectors of Election. In advance of any stockholders'
meeting, the chairman of the board or the board of directors may appoint any
persons, other than nominees for office, as inspectors of election to act at
such meeting or any adjournment thereof. The number of inspectors shall be
either one or three. If the board of directors appoints either one or three
inspectors, that appointment shall not be altered at the meeting. If inspectors
of election are not so appointed, the chairman of the board of directors may
make an appointment at the meeting. In case any person appointed as inspector
fails to appear or fails or refuses to act, the vacancy may be filled by
appointment in advance of the meeting or at the meeting by the chairman of the
board of directors or the president of the Corporation.
Unless otherwise prescribed by applicable law, the duties of such
inspectors shall include: determining the number of shares of stock and the
voting power of each share, the shares of stock represented at the meeting, the
existence of a quorum, the authenticity, validity and effect of proxies;
receiving votes, ballots or consents; hearing and determining all challenges and
questions in any way arising in connection with the right to vote; counting and
tabulating all votes or consents; determining the result; and such acts as may
be proper to conduct the election or vote with fairness to all stockholders.
SECTION 14. Nominating Committee. The board of directors or a committee
appointed by the board of directors shall act as nominating committee for
selecting the management nominees for election as directors. Except in the case
of a nominee substituted as a result of the death or other incapacity of a
management nominee, the nominating committee shall deliver written nominations
to the secretary at least twenty days prior to the date of the annual meeting.
Provided such committee makes such nominations, no nominations for directors
except those made by the nominating committee shall be voted upon at the annual
meeting unless other nominations by stockholders are made in writing and
delivered to the secretary in accordance with the provisions of the
Corporation's certificate of incorporation.
SECTION 15. New Business. Any new business to be taken up at the annual
meeting shall be stated in writing and filed with the secretary. This provision
shall not prevent the consideration and approval or disapproval at the annual
meeting of reports of officers, directors and committees, but in connection with
such reports no new business shall be acted upon at such annual meeting unless
stated and filed as provided in the Corporation's certificate of incorporation.
ARTICLE III
Board of Directors
SECTION 1. General Powers. Subject to the provisions of the General
Corporation Law of Delaware and any limitations in the certificate of
incorporation or these Bylaws relating to action required to be approved by the
stockholders or by the outstanding shares, the business and affairs of the
Corporation shall be under the direction of the board of directors. The chairman
shall preside at all meetings of the board of directors.
SECTION 2. Number, Term and Election. The number of directors shall be such
number, not less than one nor more than seven (exclusive of directors, if any,
to be elected by holders of preferred stock), as shall be provided from time to
time in a resolution adopted by the board of directors, provided that no
decrease in the number of directors shall have the effect of shortening the term
of any incumbent director, and provided further that no action shall be taken to
decrease or increase the number of directors from time to time unless at least
two-thirds of the directors then in office shall concur in said action.
Exclusive of directors, if any, elected by holders of preferred stock, vacancies
in the board of directors, however caused, and newly created directorships shall
be filled by a vote of two-thirds of the directors then in office, whether or
not a quorum, and any director so chosen shall hold office for a term expiring
at the annual stockholders' meeting at which the term of the class to which the
director has been chosen expires and when the director's successor is elected
and qualified.
Classified Board. The board of directors of the Corporation (other than
directors who may be elected by the holders of preferred stock), shall be
divided into three classes of directors which shall be designated Class I, Class
II and Class III. The members of each class shall be elected for a term of three
years and until their successors are elected and qualified. Such classes shall
be as nearly equal in number as the then total number of directors constituting
the entire board of directors shall permit, exclusive of directors, if any,
elected by holders of preferred stock, with the terms of office of all members
of one class expiring each year. Should the number of directors not be equally
divisible by three, the excess director or directors shall be assigned to
Classes I or II as follows: (1) if there shall be an excess of one directorship
over the number equally divisible by three, such extra directorship shall be
classified in Class I; and (2) if there be an excess of two directorships over a
number equally divisible by three, one shall be classified in Class I and the
other in Class II. Upon initiation of the staggered board, directors of Class I
shall be elected to hold office for a term expiring at the first annual meeting
of stockholders, directors of Class II shall be elected to hold office for a
term expiring at the second succeeding annual meeting of stockholders and
directors of Class III shall be elected to hold office for a term expiring at
the third succeeding annual meeting thereafter. Thereafter, at each succeeding
annual meeting, directors of each class shall be elected for three year terms.
Notwithstanding the foregoing, the director whose term shall expire at any
annual meeting shall continue to serve until such time as his successor shall
have been duly elected and shall have qualified unless his position on the board
of directors shall have been abolished by action taken to reduce the size of the
board of directors prior to said meeting.
Should the number of directors of the Corporation be reduced, the
directorship(s) eliminated shall be allocated among classes as appropriate so
that the number of directors in each class is as specified in the position(s) to
be abolished. Notwithstanding the foregoing, no decrease in the number of
directors shall have the effect of shortening the term of any incumbent
director. Should the number of directors of the Corporation be increased, other
than directors which may be elected by the holders of preferred stock, the
additional directorships shall be allocated among classes as appropriate so that
the number of directors in each class is as specified in the immediately
preceding paragraph.
Whenever the holders of any one or more series of preferred stock of the
Corporation shall have the right, voting separately as a class, to elect one or
more directors of the Corporation and except as otherwise may be required by
law, the terms of the director or directors elected by such holders shall expire
at the next succeeding annual meeting of stockholders.
SECTION 3. Regular Meetings. A regular meeting of the board of directors
shall be held at such time and place as shall be determined by resolution of the
board of directors without other notice than such resolution.
SECTION 4. Special Meetings. Special meetings of the board of directors may
be called by or at the request of the chairman, the chief executive officer or
one-third of the directors. The person calling the special meetings of the board
of directors may fix any place as the place for holding any special meeting of
the board of directors called by such persons.
Members of the board of the directors may participate in special meetings
by means of telephone conference or similar communications equipment by which
all persons participating in the meeting can hear each other. Such participation
shall constitute presence in person.
SECTION 5. Notice. Written notice of any special meeting shall be given to
each director at least two days previous thereto delivered personally or by
telegram or at least seven days previous thereto delivered by mail at the
address at which the director is most likely to be reached. Such notice shall be
deemed to be delivered when deposited in the United States mail so addressed,
with postage thereon prepaid if mailed or when delivered to the telegraph
company if sent by telegram. Any director may waive notice of any meeting by a
writing filed with the secretary. The attendance of a director at a meeting
shall constitute a waiver of notice of such meeting, except where a director
attends a meeting for the express purpose of objecting to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any meeting of the board of
directors need be specified in the notice or waiver of notice of such meeting.
SECTION 6. Quorum. A majority of the number of directors fixed by Section 2
shall constitute a quorum for the transaction of business at any meeting of the
board of directors, but if less than such majority is present at a meeting, a
majority of the directors present may adjourn the meeting from time to time.
Notice of any adjourned meeting shall be given in the same manner as prescribed
by Section 5 of this Article III.
SECTION 7. Manner of Acting. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the board
of directors, unless a greater number is prescribed by these bylaws, the
certificate of incorporation, or the General Corporation Law of the State of
Delaware.
SECTION 9. Action Without a Meeting. Any action required or permitted to be
taken by the board of directors at a meeting may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all of
the directors.
SECTION 10. Resignation. Any director may resign at any time by sending a
written notice of such resignation to the home office addressed to the chairman.
Unless otherwise specified therein such resignation shall take effect upon
receipt thereof by the chairman.
SECTION 11. Vacancies. Any vacancy occurring on the board of directors
shall be filled in accordance with the provisions of the Corporation's
certificate of incorporation. Any directorship to be filled by reason of an
increase in the number of directors may be filled by the affirmative vote of
two-thirds of the directors then in office or by election at an annual meeting
or at a special meeting of the stockholders held for that purpose. The term of
such director shall be in accordance with the provisions of the Corporation's
certificate of incorporation.
SECTION 12. Removal of Directors. Any director or the entire board of
directors may be removed by two-thirds of the directors or by a majority of the
stockholders at a stockholders' meeting holding a majority of the shares of
common stock.
SECTION 13. Compensation. Directors, as such, may receive compensation for
service on the board of directors. Members of either standing or special
committees may be allowed such compensation as the board of directors may
determine.
SECTION 15. Meetings Held Other Than In Person. Members of the board or any
committee may participate in a meeting of the board or committee, as the case
may be, by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other, and
such participation shall constitute presence in person at the meeting.
SECTION 16. Presumption of Asset. A director who is present at a meeting of
the board of directors at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless his dissent shall be
entered in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as the secretary of the meeting
before the adjournment of the meeting or shall forward his dissent by registered
mail to the dissent shall not apply to a Director who voted in favor of the
action.
SECTION 17. Approval of Loans to Officers. The Corporation may lend money
to or guarantee any obligation of, or other or other employee of the Corporation
or of its subsidiary, including any officer or employee who is a director of the
Corporation or its subsidiary, whenever, in the judgment of the directors, such
loan, guaranty or assistance may reasonably be expected to benefit the
Corporation. The loan, guaranty or other assistance may be with or without
interest and may be unsecured, or secured in such manner as the board of
directors shall approve, including without limitation, a pledge of shares of
stock of the Corporation. Nothing in this section shall be deemed to deny limit
or restrict the powers of guaranty or warranty of the Corporation at common law
or under any statute.
ARTICLE IV
Committees of the Board of Directors
The board of directors may, by resolution passed by a majority of the whole
board, designate one or more committees, as they may determine to be necessary
or appropriate for the conduct of the business, and may prescribe the duties,
constitution and procedures thereof. Each committee shall consist of one or more
directors appointed by the chairman. The chairman may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee.
The chairman shall have power at any time to change the members of, to fill
vacancies in, and to discharge any committee of the board. Any member of any
such committee may resign at any time by giving notice to the Corporation;
provided, however, that notice to the board, the chairman of the board, the
chief executive officer, the chairman of such committee, or the secretary shall
be deemed to constitute notice to the Corporation. Such resignation shall take
effect upon receipt of such notice or at any later time specified therein; and,
unless otherwise specified therein, acceptance of such resignation shall not be
necessary to make it effective. Any member of any such committee may be removed
at any time, either with or without cause, by the affirmative vote of a majority
of the authorized number of directors at any meeting of the board called for
that purpose.
Except as limited by law, each committee, to the extent provided in the
resolution establishing it, shall have and may exercise all the powers and
authority of the Board with respect to all matters, but no such committee shall
have the power of authority to:
a. Recommend to the stockholders an amendment to the Certificate of
Incorporation;
b. Adopt a plan of merger or consolidation;
c. Recommend to the stockholders the sale, lease, exchange or other
disposition of all or substantially all the property and assets
of the Corporation;
d. Recommend to the stockholders a dissolution of the Corporation
or a revocation of a dissolution of the Corporation;
e. Amend the Bylaws of the Corporation;
f. Declare a dividend; or
g. Take any action expressly required by the General Corporation
Law of Delaware to be submitted to stockholders of the
Corporation for approval.
A majority of all the members of a committee shall constitute a quorum for
the transaction of business, and the vote of a majority of all the members of a
committee present at a meeting at which a quorum is present shall be the act of
the committee. Each committee shall adopt whatever other rules of procedure it
determines for the conduct of its activities.
ARTICLE V
Officers
SECTION 1. Positions. The officers shall be a chairman, a president, one or
more vice presidents, a secretary and a treasurer, each of whom shall be elected
by the board of directors. The board of directors may designate one or more vice
presidents as executive vice president or senior vice president. The board of
directors may also elect or authorize the appointment of such other officers as
the business may require. The officers shall have such authority and perform
such duties as the board of directors may from time to time authorize or
determine. In the absence of action by the board of directors, the officers
shall have such powers and duties as generally pertain to their respective
offices.
SECTION 2. Election and Term of Office. The officers shall be elected
annually by the board of directors at the first meeting of the board of
directors held after each annual meeting of the stockholders. If the election of
officers is not held at such meeting, such election shall be held as soon
thereafter as possible. Each officer shall hold office until his successor shall
have been duly elected and qualified, until his death or until he shall resign
or shall have been removed in the manner hereinafter provided. Election or
appointment of an officer, employee or agent shall not of itself create contract
rights. The board of directors may authorize the Corporation to enter into an
employment contract with any officer in accordance with state law; but no such
contract shall impair the right of the board of directors to remove any officer
at any time in accordance with Section 3 of this Article V.
SECTION 3. Removal. Any officer may be removed by vote of two-thirds of the
board of directors whenever, in its judgment, the best interests will be served
thereby, but such removal, other than for cause, shall be without prejudice to
the contract rights, if any, of the person so removed.
SECTION 4. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the board
of directors for the unexpired portion of the term.
SECTION 5. Remuneration. The remuneration of the officers shall be fixed
from time to time by the board of directors, and no officer shall be prevented
from receiving such salary by reason of the fact that he is also a director.
SECTION 6. Resignations. Any officer may resign at any time by giving
written notice of his or her resignation to the Corporation. A resignation shall
take effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt, and,
unless otherwise specified therein, the acceptance of a resignation shall not be
necessary to make it effective.
ARTICLE VI
Contracts, Loans, Checks and Deposits
SECTION 1. Contracts. To the extent permitted by applicable law, and except
as otherwise prescribed by the Corporation's certificate of incorporation or
these bylaws with respect to certificates for shares, the board of directors or
the executive committee may authorize any officer, employee, or agent to enter
into any contract or execute and deliver any instrument in the name of and on
behalf . Such authority may be general or confined to specific instances.
SECTION 2. Loans. No loans shall be contracted on behalf and no evidence of
indebtedness shall be issued in its name unless authorized by the board of
directors. Such authority may be general or confined to specific instances.
SECTION 3. Checks, Drafts, or Orders. All checks, drafts or other orders
for the payment of money, notes or other evidences of indebtedness issued in the
name shall be signed by one or more officers, employees or agents in such
manner, including in facsimile form, as shall from time to time be determined by
resolution of the board of directors.
SECTION 4. Deposits. All funds not otherwise employed shall be deposited
from time to time to the credit in any of its duly authorized depositories as
the board of directors may select.
SECTION 5. Corporate Funds. All funds of the Corporation shall be under the
supervision of the board of directors and shall be handled and disposed of in
the manner and by the officers or agents of the Corporation as provided in these
Bylaws or as the board of directors may authorize by proper resolutions from
time to time.
ARTICLE VII
Certificates for Shares and Their Transfer
SECTION 1. Certificates for Shares. The shares of capital stock shall be
represented by certificates signed by the chairman of the board of directors or
the president or a vice president and by the treasurer or an assistant treasurer
or the secretary or an assistant secretary, and may be sealed with the seal or a
facsimile thereof. Any or all of the signatures upon a certificate may be
facsimiles if the certificate is countersigned by a transfer agent, or
registered by a registrar, other than the Corporation itself or an employee. If
any officer who has signed or whose facsimile signature has been placed upon
such certificate shall have ceased to be such officer before the certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer at the date of its issue.
SECTION 2. Form of Share Certificates. All certificates representing shares
of capital stock shall set forth upon the face or back that the Corporation will
furnish to any stockholder upon request and without charge a full statement of
the designations, preferences, limitations, and relative rights of the shares of
each class authorized to be issued, the variations in the relative rights and
preferences between the shares of each such series so far as the same have been
fixed and determined, and the authority of the board of directors to fix and
determine the relative rights and preferences of subsequent series.
Each certificate representing shares shall state upon the face thereof:
that the Corporation is organized under the laws of the State of Delaware; the
name of the person to whom issued; the number and class of shares, the
designation of the series, if any, which such certificate represents; the par
value of each share represented by such certificate, or a statement that the
shares are without par value. Other matters in regard to the form of the
certificates shall be determined by the board of directors.
SECTION 3. Payment for Shares. No certificate shall be issued for any share
of capital stock until such share is fully paid.
SECTION 4. Form of Payment for Shares. The consideration for the issuance
of shares of capital stock shall be paid in accordance with the provisions of
the certificate of incorporation.
SECTION 5. Transfer of Shares. Transfer of shares of capital stock shall be
made only on the stock transfer books of the Corporation. Authority for such
transfer shall be given only to the holder of record thereof or by his legal
representative, who shall furnish proper evidence of such authority, or by his
attorney thereunto authorized by power of attorney duly executed and filed with
the Corporation. Such transfer shall be made only on surrender for cancellation
of the certificate for such shares. The person in whose name shares of capital
stock stand on the books shall be deemed by the Corporation to be the owner
thereof for all purposes.
SECTION 6. Lost Certificates. The board of directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen, or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen, or destroyed. When authorizing such issue of a new certificate,
the board of directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen, or destroyed
certificate, or his legal representative, to give the Corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen,
or destroyed.
SECTION 7. Subscriptions. Subscriptions to the shares shall be paid at
times and in installments as the board of directors may determine. The board of
directors may adopt resolutions prescribing penalties for default on
subscription agreements.
ARTICLE VIII
Fiscal Year; Annual Audit
The fiscal year shall end on the last day of December of each year. The
Corporation shall be subject to an annual audit as of the end of its fiscal year
by independent public accountants appointed by and responsible to the board of
directors.
ARTICLE IX
Dividends
Dividends upon the capital stock, subject to the provisions of the
certificate of incorporation, if any, may be declared by the board of directors
at any regular or special directors' meeting, pursuant to law. Dividends may be
paid in cash, in property or in stock.
ARTICLE X
Corporation Seal
The corporate seal shall be in such form as the board of directors shall
prescribe.
ARTICLE XI
Amendments
These bylaws may be repealed, altered, amended or rescinded by the
stockholders only by vote of not less than three-quarters of the voting power of
the outstanding shares of capital stock entitled to vote generally in the
election of directors (considered for this purpose as one class) cast at a
stockholders' meeting called for that purpose (provided that notice of such
proposed repeal, alteration, amendment or rescission is included in the notice
of such meeting). In addition, the board of directors may repeal, alter, amend
or rescind these bylaws by vote of two-thirds of the board of directors at a
legal meeting held in accordance with the provisions of these bylaws.
ARTICLE XII
Indemnification of Directors and Officers
Section 1. Limitation of Certain Liabilities of Officers and Directors. To
the fullest extent permitted by the laws of the State of Delaware, a director of
the Corporation shall not be liable to the Corporation or the stockholders for
monetary damages for breach of fiduciary duty as an officer or director.
Section 2. 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), judgments, 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, and 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, by itself, create a presumption that the person did not act in good
faith and in a manner which the person reasonably believed to be in or not
opposed to the best interest of the corporation, and with respect to any
criminal action or proceeding, had reasonable cause to believe that such
person's conduct was lawful.
Section 3. Derivative Action. The corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in the corporation's favor 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 any other corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, 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; provided, however, that no indemnification shall be made in respect
of any claim, issue or matter as to which such person shall have been 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 the case, such person is fairly and reasonably
entitled to indemnity for such expenses as such court shall deem proper. 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, by
itself, create a presumption that the person did not act in good faith and in a
manner which the person reasonably believed to be in or not opposed to the best
interest of the corporation.
Section 4. 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 paragraphs 1 and 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.
Section 5. Authorization. Any indemnification under paragraph 1 and 2 above
(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 paragraph 1 and 2
above. Such determination shall be made (a) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, (b) if by independent legal counsel (selected by one
or more of the directors, whether or not a quorum and whether or not
disinterested) in a written opinion, or by the shareholders. Anyone making such
a determination under this paragraph 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.
Section 6. Advances. Expenses incurred in defending civil or criminal
actions, suits or proceedings shall be paid by the corporation, at any time or
from time to time in advance of the final disposition of such action, suit or
proceeding as authorized in the manner provided in paragraph 4 above upon
receipt of an undertaking by or on behalf of the director, trustee, officer,
employee or agent to repay such amount unless it shall ultimately be determined
by the corporation that the payment of expenses is authorized in this Section.
Section 7. Non-exclusivity. The indemnification provided in this Section
shall not be deemed exclusive of any other rights to which those indemnified may
be entitled under any law, by-law, agreement, vote of shareholders or
disinterested director or otherwise, both as to action in such person's official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, trustee, officer,
employee or agent and shall insure to the benefit of the heirs, executors, and
administrators of such a person.
Section 8. Insurance. The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who 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
any corporation, partnership, joint venture, trust or other enterprise, against
any liability assessed against such person in any such capacity or arising out
of such person's status as such, whether or not the corporation would have the
power to indemnify such person against such liability.
Section 9. "Corporation" Defined. For purpose of this section, references
to the "corporation" shall include, in addition to the corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had the power and authority to indemnify its directors, trustees, officers,
employees or agents, so that any person who is or was a director, trustee,
officer, employee or agent of such of constituent corporation will be considered
as if such person was a director, trustee, officer, employee or agent of the
corporation.