EXHIBIT 3.3
-----------
AMENDED AND RESTATED BY-LAWS
OF
YIFAN COMMUNICATIONS, INC.
ARTICLE I
STOCKHOLDERS
------------
Section 1. Place of Stockholders' Meetings. All meetings of the
stockholders of the corporation shall be held at such place or places, within or
outside the State of Delaware, as may be fixed by the Board of Directors from
time to time or as shall be specified in the respective notices thereof.
Section 2. Date, Hour and Purpose of Annual Meetings of Stockholders.
Annual Meetings of Stockholders shall be held on such day and at such time as
the Directors may determine from time to time by resolution, at which meeting
the stockholders shall elect, by a plurality of the votes cast at such election,
a Board of Directors, and transact such other business as may properly be
brought before the meeting. If for any reason a Board of Directors shall not be
elected at the Annual Meeting of Stockholders, or if it appears that such Annual
Meeting is not held on such date as may be fixed by the Directors in accordance
with the provisions of the By-laws, then in either such event the Directors
shall cause the election to be held as soon thereafter as convenient.
Section 3. Special Meetings of Stockholders. Special meetings of the
stockholders entitled to vote may be called by the Chairman of the Board, the
President or any Vice President, the Secretary or by the Board of Directors, and
shall be called by any of the foregoing at the request in writing of
stockholders owning a majority in amount of the entire capital stock of the
Corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the meeting.
Section 4. Notice of Meetings of Stockholders. Except as otherwise
expressly required or permitted by the laws of Delaware, not less than ten days
nor more than sixty days before the date of every stockholders' meeting the
Secretary shall give to each stockholder of record entitled to vote at such
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. Such notice, if mailed, shall be deemed to be given when deposited in
the United States mail, with postage thereon prepaid, addressed to the
stockholder at the post office address for notices to such stockholder as it
appears on the records of the Corporation.
Notice of any meeting of stockholders shall not be required to be given to
any stockholder who shall attend such meeting in person or by proxy or who
shall, either before or after the meeting, submit a signed waiver of notice, in
person or by proxy.
An Affidavit of the Secretary or an Assistant Secretary or of a transfer
agent of the Corporation that the notice has been given shall, in the absence of
fraud, be prima facie evidence of the facts stated therein.
Section 5. Quorum of Stockholders.
(a) Unless otherwise provided by the laws of Delaware, at any
meeting of the stockholders the presence in person or by proxy of
stockholders entitled to cast a majority of the votes thereat shall
constitute a quorum.
(b) At any meeting of the stockholders at which a quorum shall be
present, a majority of those present in person or by proxy may adjourn the
meeting without notice, other than announcement at the meeting. In the
absence of a quorum, the officer presiding thereat shall have power to
adjourn the meeting from time to time until a quorum shall be present.
Notice of any adjourned meeting other than announcement at the meeting
shall not be required to be given, except as provided in paragraph (d)
below and except where expressly required by law.
(c) At any adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at the meeting
originally called, but only those stockholders entitled to vote at the
meeting as originally noticed shall be entitled to vote at any adjournment
of adjournments thereof, unless a new record date is fixed by the Board of
Directors.
(d) If an adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the adjourned meeting.
Section 6. Chairman and Secretary of Meeting. The Chairman, or in his
absence, the President, or in his absence, any Vice President, shall preside at
meetings of the stockholders. The Secretary shall act as secretary of the
meeting, or in his absence an Assistant Secretary shall act, or if neither is
present, then the presiding officer shall appoint a person to act as secretary
of the meeting. The order of business at all meetings of the stockholders shall
be as determined by the chairman of the meeting.
Section 7. Voting by Stockholders. Except as may be otherwise provided by
statute, the Certificate of Incorporation or by these By-laws, at every meeting
of the stockholders each stockholder shall be entitled to one vote for each
share of stock standing in his name on the books of the Corporation on the
record date for the meeting. All elections and questions shall be decided by the
vote of a majority in interest of the stockholders present in person or
represented by proxy and entitled to vote at the meeting, except as otherwise
permitted or required by the laws of Delaware, the Certificate of Incorporation
or these By-laws. Except as otherwise provided by statute, these By-Laws, or the
Certificate of Incorporation, any corporate action to be taken by vote of the
stockholders shall be authorized by a majority of the total votes, cast at a
meeting of stockholders by the holders of shares present in person or
represented by proxy and entitled to vote on such action. Unless required by
statute, or determined by the chairman of the meeting to be advisable, the vote
on any question need not be by written ballot. On a vote by written ballot, each
ballot shall be signed by the stockholder voting, or by his proxy, if there be
such proxy, and shall state the number of shares voted.
Section 8. Proxies. Any stockholder entitled to vote at any meeting of
stockholders may vote either in person or by his attorney-in-fact. Every proxy
shall be in writing, dated and subscribed by the stockholder or his duly
authorized attorney-in-fact, but need not be sealed, witnessed or acknowledged.
Any such proxy shall be delivered to the secretary of such meeting at or prior
to the time designated in the order of business for so delivering such proxies.
No proxy shall be valid after the expiration of three years from the date
thereof, unless otherwise provided by proxy. Every proxy shall be revocable at
the pleasure of the stockholder executing it, except in those cases where an
irrevocable proxy is permitted by law.
Section 9. List of Stockholders.
(a) At least ten days before every meeting of stockholders, the
Secretary shall prepare or cause to be prepared a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical
order and showing the address of each stockholder and the number of shares
registered in the name of each stockholder.
(b) During ordinary business hours, for a period of at least ten
days prior to the meeting, such list shall be open to examination by any
stockholder for any purpose germane 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.
(c) The list shall also be produced and kept at the time and place
of the meeting during the whole time of the meeting, and it may be
inspected by any stockholder who is present.
(d) The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by
this Section or the books of the Corporation, or to vote in person or by
proxy at any meeting of stockholders.
Section 10. Action by Written Consent.
(a) Any action which is required to be or may be taken at any annual
special meeting of stockholders of the Corporation may be taken without a
meeting, without prior notice to stockholders and without a vote if
consents in writing, setting forth the action so taken, shall have been
signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize to take such
action at a meeting at which all shares entitled to vote thereon were
present and voted. Consents may be revoked by written notice to the
Corporation.
(b) The Corporation shall give prompt notice of the taking of
corporate action without meeting by less than unanimous written consent to
stockholders who have not consented in writing and who, if the action had
been taken at a meeting, would have been entitled to notice of the meeting
if the record date for such meeting had been the date that written
consents signed by a sufficient number of stockholders to take the action
were delivered to the Corporation in the manner provided in Section 228(c)
of the Delaware General Corporation Law.
ARTICLE II
DIRECTORS
---------
Section 1. Power of Directors. The property, business and affairs of the
Corporation shall be managed by its Board of Directors, which may exercise all
the powers of the Corporation except such as are by the laws of Delaware or the
Certificate of Incorporation or these By-laws required to be exercised or done
by the stockholders.
Section 2. Chairman of the Board. The Chairman of the Board shall preside
at all meetings of the Board of Directors and of the stockholders. In the
absence or disability of the Chairman of the Board: (a) the Executive Vice
President shall preside at all meetings of the Board of Directors and of the
stockholders, and (b) the powers and duties of the Chairman of the Board shall
be exercised by the Executive Vice President until such authority is altered by
action of the Board of Directors. The Chairman of the Board shall present to the
Annual Meeting of Stockholders a report of the business of the preceding fiscal
year.
Section 3. Number, Method of Election, Terms of Office of Directors. The
total number of Directors constituting the entire Board of Directors shall be
not less than one (1) nor more than nine (9), with the then-authorized number of
Directors being fixed from time to time solely by or pursuant to a resolution
passed by the Board of Directors, provided, however, that the total number of
Directors shall be not less than two (2) during any period when the total
stockholders' equity of the Corporation exceeds $100,000. Each Director shall
hold office until he resigns from office, is removed from office by the
affirmative vote of the holders of a majority in interest of the Corporation's
common stock or his successor is elected and qualified. Directors need not be
stockholders of the Corporation. Except as otherwise provided by the statute or
these By-Laws, the directors shall be elected at the annual meeting of the
stockholders for the election of directors at which a quorum is present, and the
persons receiving a plurality of the votes cast at such election shall be
elected. Each director shall hold office until the next annual meeting of the
stockholders and until his successor shall have been duly elected and qualified
or until his death, or until he shall have resigned, or have been removed, as
hereinafter provided in these By-Laws, or as otherwise provided by statute or
the Certificate of Incorporation.
Section 4. Vacancies on the Board of Directors.
(a) Any Director may resign his office at any time be delivering his
resignation in writing to the Chairman or the President or the Secretary.
It will take effect at the time specified therein, or if no time is
specified, it will be effective at the time of its receipt by the
Corporation. The acceptance of a resignation shall not be necessary to
make it effective, unless expressly so provided in the resignation.
(b) Any vacancy or newly created Directorship resulting from any
increase in the authorized number of Directors may be filled by vote of a
majority of the Directors then in office, though less than a quorum, and
any Director so chosen shall hold office until the next annual election of
Directors by the stockholders and until his successor is duly elected and
qualified, or until his earlier resignation or removal.
Section 5. Meetings of the Board of Directors.
(a) The Board of Directors may hold their meetings, both regular and
special, either within or outside the State of Delaware.
(b) Regular meetings of the Board of Directors may be held without
notice at such time and place as shall from time to time be determined by
resolution of the Board of Directors.
(c) The first meeting of each newly elected Board of Directors shall
be held as soon as practicable after the Annual Meeting of the
stockholders for the election of officers and the transaction of such
other business as may come before it.
(d) Special meetings of the Board of Directors shall be held
whenever called by direction of the Chairman or the President, or at the
request of Directors constituting one-third of the number of Directors
then in office, but not less than two Directors.
(e) The Secretary shall give notice to each Director of any meeting
of the Board of Directors by mailing the same at least two days before the
meeting or by delivering the same not later than the day before the
meeting. Such notice need not include a statement of the business to be
transacted at, or the purpose of, any such meeting. Any and all business
may be transacted at any meeting of the Board of Directors. No notice of
any adjourned meeting need be given. No notice to or waiver by any
Director shall be required with respect to any meeting at which the
Director is present.
Section 6. Quorum and Action. A majority of the entire Board of Directors
shall constitute a quorum for the transaction of business; but if there shall be
less than a quorum at any meeting of the Board, a majority of those present may
adjourn the meeting from time to time. Unless otherwise provided by the laws of
Delaware, the Certificate of Incorporation or these By-laws, the act of a
majority of the Directors present at any meeting at which a quorum is present
shall be the act of the Board of Directors.
Section 7. Presiding Officer and Secretary of Meeting. The Chairman or, in
his absence, a member of the Board of Directors selected by the members present,
shall preside at meetings of the Board. The Secretary shall act as secretary of
the meeting, but in his absence the presiding officer shall appoint a secretary
of the meeting.
Section 8. Acton by Consent Without Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or of 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 records of the Board or committee.
Section 9. Executive Committee. The Board of Directors may appoint from
among its members and from time to time may fill vacancies in an Executive
Committee to serve during the pleasure of the Board. The Executive Committee
shall consist of three members, or such greater number of members as the Board
of Directors may by resolution from time to time fix. One of such members shall
be the Chairman of the Board who shall be the presiding officer of the
Committee. During the intervals between the meetings of the Board, the Executive
Committee shall possess and may exercise all of the powers of the Board in the
management of the business and affairs of the Corporation conferred by these
By-laws or otherwise. The Committee shall keep a record of all its proceedings
and report the same to the Board. A majority of the members of the Committee
shall constitute a quorum. The act of a majority of the members of the Committee
present at any meeting at which a quorum is present shall be the act of the
Committee.
Section 10. Other Committees. The Board of Directors may designate one or
more committees, each committee to consist of one or more of the directors of
the Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee who mat replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of the committee, the member or members thereof present at any meeting
and not disqualifies form voting, whether or not he or they constitute a quorum,
many unanimously appoint another member of the Board of Directors to act at the
meeting in place of any such absent or disqualified member. Any such committee,
to the extent have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which 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 these by-laws.
Section 11. Compensation of Directors. Directors shall receive such
reasonable compensation for their service on the Board of Directors or any
committees thereof, whether in the form of salary or a fixed fee for attendance
at meetings, or both, with expenses, if any, as the Board of Directors may from
time to time determine. Nothing herein contained shall be construed to preclude
any Director from serving in any other capacity and receiving compensation
therefor.
Section 12. Resignations. Any director of the Corporation may resign at
any time by giving written notice of his resignation to the Board of Directors
or the President or the Secretary. Any such 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 such resignation shall not be necessary to
make it effective.
Section 13. Vacancies. Vacancies may be filled by a majority of the
directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole Board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or holders of at least ten percent of the votes
of the shares at the time outstanding having the right to vote for such
directors, summarily order an election to be held to fill any such vacancies or
newly created directorships, or to replace the directors chosen by the directors
then in office. Except as otherwise provided in these By-Laws, when one or more
directors shall resign from the Board of Directors, effective at a future date,
a majority of the directors then in office, including those who have so
resigned, shall have the power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office as provided in this
section in the filling of other vacancies.
Section 14. Removal of Directors. Except as otherwise provided in the
Certificate of Incorporation or in these By- Laws, any director may be removed,
either with or without cause, at any time, by the affirmative vote of a majority
of the votes of the issued and outstanding stock entitled to vote for the
election of directors of the Corporation given at a special meeting of the
stockholders called and held for the purpose; and the vacancy in the Board of
Directors caused by any such removal may be filled by such stockholders at such
meeting, or, if the stockholders shall fail to fill such vacancy, as in these
By-Laws provided.
Section 15. Interested Directors; 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, 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 which authorizes the contract or transaction.
ARTICLE III
OFFICERS
--------
Section 1. Executive Officers of the Corporation. The executive officers
of the Corporation shall be elected by the Board of Directors and shall consist
of at least a President, a Secretary and a Treasurer. The Board of Directors
also may appoint a Chairman of the Board, a Vice Chairman of the Board, and one
or more Executive Vice Presidents, Vice Presidents, Assistant Secretaries and
Assistant Treasurers. Any two or more offices may be filled by the same person.
None of the officers need be a member of the Board except the Chairman of the
Board and the Vice Chairman of the Board.
Section 2. Choosing of Executive Officers. The Board of Directors at its
first meeting after each Annual Meeting of Stockholders shall choose a
President, a Secretary and a Treasurer.
Section 3. Additional Officers. The Board of Directors may appoint such
other officers and agents as it shall deem necessary, who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board.
Section 4. Salaries and Bonds. The salaries of all the officers and agents
of the Corporation specially appointed by the Board shall be fixed by the Board
of Directors. If required by the Board of Directors, any officer of the
Corporation shall give a bond or other security for the faithful performance of
his duties, in such amount and with such sureties as the Board of Directors may
require.
Section 5. Term, Removal and Vacancies. The officers of the Corporation
shall hold office until the meeting of the Board of Directors following the next
annual meeting of the stockholders, or until his successor shall have been duly
elected and shall have qualified, or until his death, or until he shall have
resigned, or have been removed, as hereinafter provided in these By-Laws. Any
officer elected or appointed by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in any office of the Corporation by death, resignation,
removal or otherwise shall be filled by the Board of Directors.
Section 6. President. The President shall have such powers and perform
such duties as are provided in these By-laws or as may be delegated to him by
the Board of Directors or the Chairman of the Board. The President shall have
the general and active management of the business of the Corporation and general
and active supervision and direction over the other officers, agents and
employees and shall see their duties are properly performed. He shall, if
present, preside at each meeting of the stockholders and of the Board of
Directors and shall be an ex-officio member of all committees of the Board of
Directors. He shall perform all duties incident to the office of President and
such other duties as may from time to time be assigned to him by the Board of
Directors. In the absence of the Chairman of the Board, the President shall
preside at all meetings of the stockholders.
Section 7. Powers and Duties of the Chief Executive Officer. The Chief
Executive Officer shall have general charge and supervision of the business of
the Company and shall exercise and perform all the duties incident to the office
of the Chief Executive Officer. He shall have direct supervision of the other
officers and shall also exercise and perform such powers and duties as may be
assigned to him by the Board of Directors.
Section 8. Powers and Duties of Vice Presidents. Any Vice President
designated by the Board of Directors shall, in the absence, disability or
inability to act of the President, perform all duties and exercise all the
powers of the President and shall perform such other duties as the Board may
from time to time prescribe. Each Vice President shall have such other powers
and shall perform such other duties as may be assigned to him by the Board.
Section 9. Powers and Duties of Treasurer and Assistant Treasurers.
(a) The Treasurer shall be the Chief Financial Officer of the
Corporation and have the care and custody of all the funds and securities
of the Corporation, except as may be otherwise ordered by the Board of
Directors, and shall cause such funds to be deposited to the credit of the
Corporation in such banks or depositories as may be designated by the
Board of Directors, the Chairman, the President or the Treasurer, and
shall cause such securities to be placed in safekeeping in such manner as
may be designated by the Board of Directors, the Chairman, the President
or the Treasurer.
(b) The Treasurer, or an Assistant Treasurer, or such other person
or persons as may be designated for such purpose by the Board of
Directors, the Chairman, the President or the Treasurer, may sign, make
and endorse in the name and on behalf of the Corporation, all instruments
for the payment of money, bills of lading, warehouse receipts, insurance
policies and other commercial documents requiring such endorsement.
(c) The Treasurer, or an Assistant Treasurer, or such other person
or persons as may be designated for such purpose by the Board of
Directors, the Chairman, the President or the Treasurer, may sign all
receipts and vouchers for payments made to the Corporation; he shall
render a statement of the cash account of the Corporation to the Board of
Directors as often as it shall require; he shall enter regularly in books
to be kept by him for that purpose full and accurate accounts of all
moneys received and paid by him on account of the Corporation and of all
securities received and delivered by the Corporation.
(d) Each Assistant Treasurer shall perform such duties as may from
time to time be assigned to him by the Treasurer or by the Board of
Directors. In the event of the absence of the Treasurer or his incapacity
or inability to act, then any Assistant Treasurer may perform any of the
duties and may exercise any of the powers of the Treasurer.
Section 10. Powers and Duties of Secretary and Assistant Secretaries.
(a) The Secretary shall attend all meetings of the Board and all
meetings of the stockholders, and shall keep the minutes of all such
proceedings in proper books provided for that purpose. The Secretary shall
attend to the giving and serving of all notices of the Corporation in
accordance with the provisions of the By-laws and as required by the laws
of Delaware. The Secretary shall (i) be custodian of the records and the
seal of the Corporation and affix and attest the seal to all stock
certificates of the Corporation (unless the seal of the Corporation on
such certificates shall be a facsimile, as hereinafter provided) and affix
and attest the seal to all other documents to be executed on behalf of the
Corporation under its seal and (ii) see that the books, reports,
statements, certificates and other documents and records required by law
to be kept and filed are properly kept and filed. The Secretary may, with
the President, a Vice President or other authorized officer, sign all
contracts and other documents in the name of the Corporation. He shall
perform such other duties as may be prescribed in these By-laws or
assigned to him and all other acts incident to the position of Secretary.
(b) Each Assistant Secretary shall perform such duties as may from
time to time be assigned to him by the Secretary or by the Board of
Directors. In the event of the absence of the Secretary or his incapacity
or inability to act, then any Assistant Secretary may perform any of the
duties and may exercise any of the powers of the Secretary.
(c) In no case shall the Secretary or any Assistant Secretary,
without the express authorization and direction of the Board of Directors,
have any responsibility for, or any duty or authority with respect to, the
withholding or payment of any federal, state or local taxes of the
Corporation, or the preparation or filing of any tax return.
ARTICLE IV
CAPITAL STOCK
-------------
Section 1. Stock Certificates.
(a) Every holder of stock in the Corporation shall be entitled to
have a certificate signed in the name of the Corporation by the Chairman
or the President or a Vice President, and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary, certifying the
number of shares owned by him.
(b) The signatures of the officers of the Corporation may be
facsimiles and, if permitted by Delaware law, any other signature on the
certificate may be a facsimile.
(c) In case any officer who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer
before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer at the date of issue.
(d) Certificates of stock shall be issued in such form not
inconsistent with the Certificate of Incorporation. They shall be numbered
and registered in the order in which they are issued. No certificate shall
be issued until fully paid.
Section 2. Record Ownership. A record of the name and address of the
holder of each certificate, the number of shares represented thereby, and the
date of issue thereof shall be made on the Corporation's books. The Corporation
shall be entitled to treat the holder of record of any share of stock as the
holder in fact thereof, and accordingly shall not be bound to recognize any
equitable or other claim to or interest in any share on the part of any other
person, whether or not it shall have express or other notice thereof, except as
required by the laws of Delaware.
Section 3. Transfer of Record Ownership. Transfers of stock shall be made
on the books of the Corporation only by direction of the person named in the
certificate or his attorney, lawfully constituted in writing, and only upon the
surrender of the certificate therefor and a written assignment of the shares
evidenced thereby. Whenever any transfer of stock shall be made for collateral
security, and not absolutely, it shall be so expressed in the entry of the
transfer if, when the certificates are presented to the Corporation for
transfer, both the transferor and transferee request the Corporation to do so.
Section 4. Lost, Stolen or Destroyed Certificates. Certificates
representing shares of the stock of the Corporation shall be issued in place of
any certificate alleged to have been lost, stolen or destroyed in such manner
and on such terms and conditions as the Board of Directors from time to time may
authorize.
Section 5. Transfer Agent, Registrar, Rules Respecting Certificates. The
Corporation shall maintain one or more transfer offices or agencies where stock
of the Corporation shall be transferable. The Corporation shall also maintain
one or more registry offices where such stock shall be registered. The Board of
Directors may make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of stock certificates.
Section 6. Fixing Record Date for Determination of Stockholders of Record.
The Board of Directors may fix in advance a date as the record date for the
purpose of determining the stockholders entitled to notice of, or to vote at,
any meeting of the stockholders or any adjournment thereof, or the stockholders
entitled to receive payment of any dividend or other distribution or the
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or to express consent to corporate
action in writing without a meeting, or in order to make a determination of the
stockholders for the purpose of any other lawful action. Such record date in any
case shall not be more than sixty days nor less than ten days before the date of
a meeting of the stockholders, nor more than sixty days prior to any other
action requiring such determination of the stockholders. 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.
ARTICLE V
SECURITIES HELD BY THE CORPORATION
----------------------------------
Section 1. Voting. Unless the Board of Directors shall otherwise order,
the Chairman, the President or the Treasurer shall have full power and authority
on behalf of the Corporation to attend, act and vote at any meeting of the
stockholders of any corporation in which the Corporation may hold stock and at
such meeting to exercise any or all rights and powers incident to the ownership
of such stock, and to execute on behalf of the Corporation a proxy or proxies
empowering another or others to act as aforesaid. The Board of Directors from
time to time may confer like powers upon any other person or persons.
Section 2. General Authorization to Transfer Securities Held by the
Corporation.
(a) Any of the following officers, to wit: the Chairman, the
President, the Treasurer or the Secretary of the Corporation shall be and
are hereby authorized and empowered to transfer, convert, endorse, sell,
assign, set over and deliver any and all shares of stock, bonds,
debentures, notes, subscription warrants, stock purchase warrants,
evidences of indebtedness or other securities now or hereafter standing in
the name of or owned by the Corporation, and to make, execute and deliver
under the seal of the Corporation any and all written instruments of
assignment and transfer necessary or proper to effectuate the authority
hereby conferred.
(b) Whenever there shall be annexed to any instrument of assignment
and transfer executed, pursuant to and in accordance with the foregoing
paragraph (a), a certificate of the Secretary or an Assistant Secretary of
the Corporation in office at the date of such certificate setting forth
the provisions hereof and stating that they are in full force and effect
and setting forth the names of persons who are then officers of the
Corporation, then all persons to whom such instrument and annexed
certificate shall thereafter come shall be entitled, without further
inquiry or investigation and regardless of the date of such certificate,
to assume and to act in reliance upon the assumption that the shares of
stock or other securities named in such instrument were theretofore duly
and properly transferred, endorsed, sold, assigned, set over and delivered
by the Corporation, and that with respect to such securities the authority
of these provisions of the By-laws and of such officers is still in full
force and effect.
ARTICLE VI
DIVIDENDS
---------
Section 1. Declaration of Dividends. Dividends upon the capital stock of
the Corporation may be declared by the Board of Directors at any regular or
special meeting pursuant to law. Dividends may be paid in cash, in property, or
in shares of the capital stock, subject to the provisions of the Certificate of
Incorporation.
Section 2. Payment and Reserves. Before payment of any dividend, there may
be set aside out of any funds of the Corporation available for dividends such
sum or sums as the Directors from time to time, in their absolute discretion,
think proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the Directors shall think conducive to the interest of
the Corporation, and the directors may modify or abolish any such reserves in
the manner in which they were created.
Section 3. Record Date: The Board of Directors may, to the extent provided
by law, prescribe a period, in no event in excess of sixty (60) days, prior to
the date for payment of any dividend, as a record date for the determination of
stockholders entitled to receive payment of any such dividend, and in such case
such stockholders and only such stockholders as shall be stockholders of record
on said date so fixed shall be entitled to receive payment of such dividend,
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid.
ARTICLE VII
GENERAL PROVISIONS
------------------
Section 1. Signatures of Officers. All checks or demands for money and
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate. The signature of any officer upon any of the foregoing instruments
may be a facsimile whenever authorized by the Board.
Section 2. Fiscal Year. The fiscal year of the Corporation shall end on
December 31 unless otherwise fixed by resolution of the Board of Directors.
Section 3. Seal. Upon resolution of the Board of Directors, the
Corporation may elect to have a corporate seal. In such event, the corporate
seal shall have inscribed thereon the name of the Corporation, the year of its
incorporation and the words "Corporate Seal, Delaware". Said seal may be used
for causing it or a facsimile thereof to be impressed or affixed or reproduced
or otherwise.
ARTICLE VIII
WAIVER OF OR DISPENSING WITH NOTICE
-----------------------------------
Whenever any notice of the time, place or purpose of any meeting of the
stockholders, Directors or a committee is required to be given under the laws of
Delaware, the Certificate of Incorporation or these By-laws, a waiver thereof in
writing, signed by the person or persons entitled to such notice, whether before
or after the holding thereof, or actual attendance at the meeting in person, or
in the case of the stockholders, by his attorney-in-fact, shall be deemed
equivalent to the giving of such notice to such persons. No notice need be given
to any person with whom communication is made unlawful by any law of the United
States or any rule, regulation, proclamation or executive order issued under any
such law.
ARTICLE IX
AMENDMENT OF BY-LAWS
--------------------
These By-laws, or any of them, may from time to time be supplemented,
amended or repealed by the Board of Directors, or by the vote of a majority in
interest of the stockholders represented and entitled to vote at any meeting at
which a quorum is present.
ARTICLE X
INDEMNIFICATION
---------------
To the fullest extent permitted by law, the Corporation shall indemnify
any director or officer of the Corporation who was or is party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative by reason
of the fact that he is or was a director or officer of the Corporation, or is or
was serving at the request of the Corporation as a director, officer , agent or
employee of another corporation, partnership, joint venture, trust or enterprise
against expenses (including attorneys' fees), liability, loss, judgment, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner reasonably believed to be in or not opposed to the best interest of the
Corporation, and, with respect to any criminal action or proceedings, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, upon a plea of nolo contendere or equivalent, shall not of itself,
create a presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect of any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Such indemnity shall inure to the benefit of the heirs, executors and
administrators of any director or officer so indemnified pursuant to this
Article. The right to indemnification under this Article shall be a contract
right and shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in the advance of its disposition;
provided however, that, if the Delaware General Corporation Law requires, the
payment of such expenses incurred in advance to the final disposition of a
proceeding shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer to repay all amounts so
advanced if it shall ultimately be determined that such director or officer is
not entitled to be indemnified under this Article or otherwise. Such
indemnification and advancement of expenses shall be in addition to any other
rights to which those directors and officers seeking indemnification and
advancement of expenses may be entitled under any law, agreement, vote of
stockholders, or otherwise.
Any repeal or amendment of this Article by the stockholders of the
Corporation or by the changes in applicable law shall, to the extent permitted
by applicable law, be prospective only, and shall not adversely affect any right
to indemnification or advancement of expenses of a director or officer of the
Corporation existing at the time of such repeal or amendment. In addition to the
foregoing, the right to indemnification and advancement of expenses shall be to
the fullest extent permitted by the General Corporation Law of the State of
Delaware or any other applicable law and all amendments to such laws as
hereafter enacted from time to time.
ARTICLE XI
AMENDMENTS
----------
These By-Laws may be amended or repealed, or new By-Laws may be adopted,
(1) at any annual or special meeting of the stockholders, by majority of the
total votes of the stockholders present or in person or represented by proxy and
entitled to vote on such action; provided however, that the notice of such
meeting shall have been given as provided in these By-Laws, which notice shall
mention that amendment or repeal of these By-Laws, or the adoption of new
By-Laws, is one of the purposes of such meeting; (2) by written consent of the
stockholders pursuant to these by-laws; or (3) by action of the Board of
Directors pursuant to these by-laws.