AMENDED AND RESTATED BY-LAWS
OF
HOMES FOR AMERICA HOLDINGS, INC.
(A Nevada Corporation)
ARTICLE I
Offices and Agents
Section 1.1. Registered Office.
The corporation shall have and maintain a registered office, which may, but
need not be, the same as its place of business.
Section 1.2 Other Offices.
The corporation may also have offices and places of business at such places
within or without the State of Nevada as the Board of Directors may from time to
time determine or the business of the corporation may require.
Section 1.3 Registered Agent.
The corporation shall have and maintain in the State of Nevada a registered
agent, which agent may be either an individual resident in the State of Nevada
whose business office is identical with the corporation's registered office, or
a Nevada corporation (which may be itself) or a foreign corporation authorized
to transact business in the State of Nevada, having a business office identical
with such registered office.
ARTICLE II
Stock and Stockholders
Section 2.1 Certificates Representing Stock.
Every holder of stock in the corporation shall be entitled to have a
certificate signed by, or in the name of, the corporation by the Chairman or
Vice-Chairman of the Board or by the President or Executive Vice-President and
by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the corporation, certifying the number of shares owned by him in
the corporation. The certificates for shares of stock of the corporation shall
be in such form as shall be determined by the Board of Directors, shall have set
forth thereon any statements prescribed by statute, and shall be numbered and
entered in the stock ledger of the corporation as they are issued. Any and all
signatures on any such 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 the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
Section 2.2 Lost Certificates.
The Board of Directors may direct that a new share certificate be issued in
place of any certificate theretofore issued by the corporation which has been
mutilated or which is alleged to have been lost, stolen or destroyed, upon
presentation of each such mutilated certificate or the making by the person
claiming any such certificate to have been lost, stolen or destroyed of an
affidavit as to the fact and circumstances of the loss, theft or destruction
thereof, or complying with such other procedures as may be established by the
Board of Directors. The Board of Directors, in its discretion and as a condition
precedent to the issuance of any new certificate, may require the owner of any
certificate alleged to have been lost, stolen or destroyed, or his legal
representative, to furnish the corporation with a bond, in such sum and with
such surety or sureties as it may direct, as indemnity against any claim that
may be made against the corporation on account of the alleged loss, theft or
destruction of such certificate or the issuance of such new certificate.
Exhibit 3.2 - Page 1
<PAGE>
Section 2.3 Fractions of Shares.
The corporation may, but shall not be required to, issue fractions of a
share. If the corporation does not issue fractions of a share, it shall (1)
arrange for the disposition of fractional interests by those entitled thereto,
(2) pay in cash the fair value of fractions of a share as of the time when those
entitled to receive such fractions are determined, or (3) issue scrip or
warrants in registered or bearer form which shall entitle the holder to receive
a certificate for a full share upon the surrender of such scrip or warrants
aggregating a full share. A certificate for a fractional share shall, but scrip
or warrants shall not unless otherwise provided therein, entitle the holder to
exercise voting rights, to receive dividends thereon, and to participate in any
of the assets of the corporation in the event of liquidation. The Board of
Directors may cause scrip or warrants to be issued subject to the conditions
that they shall become void if not exchanged for certificates representing full
shares before a specified date, or subject to the conditions that the shares for
which scrip or warrants are exchangeable may be sold by the corporation and the
proceeds thereof distributed to the holders of scrip or warrants, or subject to
any other conditions with the Board of Directors may impose.
Section 2.4 Stock Transfers.
Upon compliance with provisions restricting the transfer or registration of
transfer of shares of stock, if any, transfers or registration of transfers of
shares of stock or the corporation shall be made only on the stock ledger of the
corporation by the registered holder thereof, or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary of
the corporation or with a transfer agent or a registrar, if any, and on
surrender of the certificate or certificates for such shares of stock properly
endorsed and the payment of all taxes due thereon.
Section 2.5 Record Date.
For the purpose of determining 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 the 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, in advance, a record date, which shall not be more than sixty
(60) days nor less than ten (10) days before the date of such meeting, nor more
than sixty (60) days prior to any other action. If no record date is fixed, 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; the record date for determining stockholders entitled to express consent
to corporate action in writing without a meeting, when no prior action by the
Board of Directors is necessary, shall be the day on which the first written
consent is expressed; and 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 any meeting of
stockholders hall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
Section 2.6 Meeting of Stockholders.
2.6.1 Time and Place.
All meeting of stockholders shall be held at such time and such place,
whether within or without the State of Nevada, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Exhibit 3.2 - Page 2
<PAGE>
2.6.2 Annual Meetings.
An annual meeting of stockholders, commencing with the year 1996, shall be
held on the second Tuesday in July of each year, or if such day is a legal
holiday, on the next business day following; provided, that if the Board of
Directors shall determine that in any year it is not advisable or convenient to
hold the meeting on such day, then in such year the annual meeting shall instead
be held on such other day, not more than sixty (60) days before or after the
second Tuesday of July of each year and not a legal holiday, as the Board shall
prescribe. At each annual meeting, the stockholders shall elect a Board of
Directors and transact such other business as may properly be brought before the
meeting.
2.6.3 Special Meetings.
Special meetings of stockholders, for any purpose or purposes, unless
otherwise prescribed by statue or by the Certificate of Incorporation, may be
called by the Chairman of the Board, the President or a majority of the Board of
Directors or by the holders of 10% of the common stock of the corporation
entitled to vote at the special meeting. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice of
the meeting or in a duly executed waiver of notice thereof.
2.6.4 Notice of Meetings.
Written notice of each meeting of stockholders, stating the place, date and
hour thereof, and, in the case of a special meeting, specifying the purpose or
purposes thereof, shall be given to each stockholder entitled to vote thereat
not less than ten (10) days nor more than sixty (60) days prior to the meeting,
except that where the matter to be acted on is a merger or consolidate of the
corporation or a sale, lease or exchange of all or substantially all of its
assets, such notice shall be given not less than twenty (20) days nor more than
sixty (60) days prior to such meeting. If a meeting is adjourned to another time
and place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken. If
the adjournment is for more than thirty (30) days, or if after the adjournment a
new record date is fixed for the adjournment meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
2.6.5 Business Before a Meeting.
To be properly brought before the meeting, business must be either (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, or (c) otherwise properly
brought before the meeting by a stockholder. In addition to any other applicable
requirements, for business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing,
either by personal delivery or by United States mail, postage prepaid, to the
Secretary of the Company not later than 120 days prior to the meeting
anniversary date of the immediately preceding annual meeting or if no annual
meeting was held for any reason in the preceding year, 120 days prior to the
second Tuesday in July. A stockholder's notice to the secretary shall set forth
as to each matter the stockholder proposes to bring before the meeting (i) 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 (ii)
the name and record address of the stockholder proposing such business, (iii)
the class and number of shares of the Company which are beneficially owned by
the stockholder and (iv) any material interest of the stockholder in such
business.
Notwithstanding anything in the By-Laws to the contrary, no business shall
be conducted at the annual meeting except in accordance with the procedures set
fort in this Section 2.6.5 of Article 2, provided, however, that nothing in this
Section 2.6.5 of Article 2 shall be deemed to preclude discussion by any
stockholder of any business properly brought before the annual meeting.
Exhibit 3.2 - Page 3
<PAGE>
The Chairman of an annual meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section 2.6.5 of Article 2 and
if he should so determine, which determination shall be conclusive, he shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
2.6.6 Stockholder List.
The Secretary of the corporation shall prepare and make, or cause to be
prepared and made, at least ten (10) days before every meeting of stockholders,
a complete list of the stockholders, arranged in alphabetical order, and showing
the address of each stockholder and the number of shares registered in the name
of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a
place within the city or other municipality or community 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. 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 subsection or the books of
the corporation, or to vote in person or by proxy at any meeting of
stockholders.
2.6.7. Quorum.
Except as otherwise provided by statute or the Certificate of
Incorporation, the holders of a majority of the shares of stock of the
corporation issued and outstanding and entitled to vote thereat, present in
person or by proxy, shall be necessary to and shall constitute a quorum for the
transaction of business at each meeting of stockholders. If a quorum shall not
be present at the time fixed for any meeting, the stockholders present in person
or by proxy and entitled to vote thereat shall have power to adjourn the meeting
from time to time, without notice other than an announcement at the meeting of
the place, date and hour of the adjourned meeting, until a quorum shall be
present; and at any such adjourned meeting at which a quorum shall be present at
the time originally fixed for the meeting.
2.6.8 Conduct of Meeting.
Meetings of the stockholders shall be presided over by one of the following
officers in the order of seniority and if present and acting: the Chairman of
the Board, Vice-Chairman of the Board, the President, the Executive Vice
President, a Vice President, or if none of the foregoing is in office and
present and acting, by a chairman to be chosen by the stockholders. The
Secretary of the corporation, or in his absence, an Assistant Secretary, shall
act as secretary of every meeting, but if neither the Secretary nor an Assistant
Secretary is present the chairman of the meeting shall appoint a secretary of
the meeting. The Board of Directors of the Company shall be entitled to make
such rules or regulations for the conduct of meetings of stockholders as it
shall deem necessary, appropriate or convenient. Subject to such rules and
regulations of the Board of Directors, if any, the chairman of the meeting 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 necessary,
appropriate or convenient for the proper conduct of the meeting including,
without limitation, establishing an agenda or order of business for the meeting,
rules and procedures for maintaining order at the meeting and the safety of
those present, limitations on participation in such meeting to stockholders of
record of the Company and their duly authorized and constituted proxies, and
such other persons as the chairman shall permit, restrictions on entry at the
meeting after the time fixed for the commencement thereof, limitations on the
time allotted to questions or comments by participants and regulation of the
opening and closing of the polls for balloting on matters which are to be voted
on by ballot. 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 rules or parliamentary procedures.
Exhibit 3.2 - Page 4
<PAGE>
2.6.9 Voting.
Except as otherwise provided by statute or by the Certificate of
incorporation, at any meeting of stockholders each stockholder shall be entitled
to one vote for each outstanding share of stock of the corporation standing in
such holder's name on the books of the corporation as of the record date for
determining the stockholders entitled to notice of and to vote at such meeting.
At any meeting of stockholders at which a quorum is present, all elections shall
be determined by plurality vote and all other matters shall be determined by the
vote of the holders of a majority of the shares present in person or by proxy
and entitled to vote, unless the matter is one with respect to which, by express
provision of statute, the Certificate of Incorporation or these By-Laws, a
different vote is required, in which case such express provision shall govern
and control the determination of such matter.
2.6.10. Proxy Representation.
Every stockholder may authorize another person or persons to act for him by
proxy in all matters in which a stockholder is entitled to participate, whether
by waiving notice of any meeting, voting or participating at a meeting, or
expressing consent or dissent to corporate action in writing without a meeting,
voting or participating at a meeting, or expressing consent or dissent to
corporate action in writing without a meeting. Every proxy must be signed by the
stockholder or by his attorney-in-fact. No proxy shall be voted or acted upon
after three years from its date unless such proxy provides for a longer period
and the corporation laws of the State of Nevada allow for a period in excess of
three years.
2.6.11. Inspectors of Election.
The Board of Directors, in advance of any meeting of stockholders, may, but
need not, appoint one or more inspectors of election to act at the meeting or
any adjournment thereof. If an inspector or inspectors are not appointed in
advance of the meeting, the person presiding at the meeting may, but need not,
appoint one or more inspectors. In case any person who may be appointed as an
inspector fails to appear or act, the vacancy may be filled by appointment made
by the Board of Directors in advance of the meeting or at the meeting by the
person presiding thereat. Each inspector before entering upon the discharge of
his duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability. The inspectors, if any, shall determine the number of shares of
stock outstanding at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots or consents, determine the result,
and do such acts as are proper to conduct the election or vote with fairness to
all stockholders. On request of the person presiding at the meeting, the
inspector or inspectors, if any, shall make a report in writing of any
challenge, question or matter determined by him or them and execute a
certificate of any fact found by him or them.
Section 2.7. Action of Stockholders Without a Meeting.
Any action required or permitted to be taken at an annual or special
meeting of stockholders by statute, the Certificate of Incorporation or these
By-Laws, may be taken without a meeting, without prior notice and without a
vote, if a consent 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. Where any
action is taken in such manner by less than unanimous written consent, prompt
written notice of the taking of such action shall be given to all stockholders
who have not consented in writing thereto.
Exhibit 3.2 - Page 5
<PAGE>
ARTICLE III
Directors
Section 3.1 Board of Directors.
The business and affairs of the corporation shall be managed by or under
the direction of a Board of Directors. The Board of Directors may exercise all
such powers of the corporation and do all such lawful acts and things on its
behalf as are not by statue or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
Without limiting the generality of the preceding sentence, the Board of
Directors is expressly authorized to exercise all the power of the corporation
to borrow or raise moneys and to execute, accept, endorse and deliver as
evidence of such borrowing all kinds of securities; and to secure The payment
and performance of the obligations thereunder by mortgage on, pledge of, or
other security interest in, the whole or any part of the property, assets and
income of the corporation.
Section 3.2 Qualifications.
Directors need not be stockholders of the corporation, citizens of the
United States or residents of the State of Nevada.
Section 3.3 Number.
The number of directors constituting the whole Board of Directors shall be
not less than one (1) nor more than ten (10) as fixed from time to time by
resolution of the Board or by the stockholders or, if the number of directors
constituting the whole Board is not so fixed, the number shall be one (1);
provided, that no decrease in the number of directors shall shorten the term of
any incumbent director.
Section 3.4 Nominations.
Nominations for the election of directors may be made by the Board of
Directors or a committee appointed by the Board of Directors or by any
stockholder entitled to vote in the election of directors generally. However,
any stockholder entitled to vote in the election of directors generally may
nominate one or more persons for election as directors at a meeting only if
written note of such stockholder's intent to make such nomination or nominations
has been given, either by personal delivery or by United States mail, postage
prepaid, to the Secretary of the Company not later than (i) with respect to an
election to be held at an annual meeting of stockholders, 90 days prior to the
anniversary date of the immediately preceding annual meeting or if an annual 90
days prior to the anniversary date of the immediately preceding 90 days from the
first Wednesday in December; and (ii) with respect to an election to be held at
a special meeting of stockholders for the election of directors, the close of
business on the tenth day following the date on which notice of such meeting is
first given to stockholders. Each such notice shall set forth: (a) the name and
address of the stockholder who intends to make the nomination and of the person
or persons to be nominated; (b) a representation that the stockholder is a
holder of record of stock of the Company entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice; (c) a description of all arrangements or
understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder; (d) such other information
regarding each nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission; and (e) the consent of each nominee to serve
as a director of the Company if so elected. The presiding officer of the meeting
may refuse to acknowledge the nomination of any person not made in compliance
with the foregoing procedure.
Exhibit 3.2 - Page 6
<PAGE>
Section 3.5 Election and Tenure.
With the exception of the first Board of Directors named in the Certificate
of Incorporation, and except as otherwise permitted in these By-Laws, directors
shall be elected at the annual meeting of stockholders in accordance with these
by-laws and the Corporation's Certificate of Incorporation. Each director shall
hold office for a term expiring at the annual meeting of stockholders next
succeeding his election and until his successor is elected and has qualified or
until his earlier displacement from office by resignation, removal or otherwise.
Any director shall be eligible for re-election.
Anything to the contrary notwithstanding in this Section 3.5 or this
Article III, to the extent that the Certificate of Incorporation, as amended,
makes provision for the division of directors into three classes, the initial
term of office of Class I shall expire at the 2002 annual meeting; of Class 2 at
the 2001 annual meeting; of Class 3 at the 2000 annual meeting; and at each
annual election held after such classification and election, directors shall be
chosen for a full term, as the case may be, to succeed those whose terms expire.
Section 3.6. Resignation and Removal.
Any director may resign at any time by written notice to the corporation.
Any director or the whole Board of Directors may be removed, with cause, by the
holders of a majority of the shares entitled to vote at an election of
directors, and any director or the whole board of directors may be removed
without cause by the holders of a majority of the shares of the Class then
entitled to vote for the election of the director or directors sought to be
removed. Any such removal shall be without prejudice to the rights, if any, of
the director so removed under any contract of service or other agreement with
the corporation.
Section 3.7. Vacancies.
Any vacancy in the Board of Directors occurring by reason of the death,
resignation or disqualification of any director, the removal of any director
from office for cause or without cause, an increase in the number of directors,
or otherwise, may be filled by a majority of the directors then in office
elected by the holders of the shares of the Class entitled to vote at an
election of directors for the vacancy sought to be filled, although such
majority is less than a quorum, or by the sole remaining director of such class,
or by the stockholders of such class. Each director elected to fill a vacancy
shall hold office for a term expiring at the next succeeding annual meeting of
stockholders and until his successor is elected and has qualified or until his
earlier displacement from office by resignation, removal or otherwise. If one or
more directors shall resign from the Board effective at a future date, a
majority of the directors then in office, including those who have so resigned,
elected by the holders of the shares of the Class entitled to vote at an
election of directors for the vacancy sought to be filled, may fill such vacancy
or vacancies, the vote thereon to take effect when such resignation or
resignations become effective, and each director so chosen shall hold office as
provided in this section in the filling of other vacancies.
Section 3.8. Meetings of the Board.
3.8.1. First Meeting.
The directors elected by the incorporator of the corporation and at each
subsequent annual meeting of stockholders shall hold their first meeting as soon
as practicable following the date of their election, and in any event within
thirty (30) days after each annual meeting of stockholders, at such time and
place as shall be fixed by resolution of the Board of Directors prior to the
annual meeting or by the consent in writing of all the newly-elected directors,
for the purpose of choosing the officers of the corporation and for the
transaction of such other business as may properly be brought before the
meeting, and no notice of such meeting to the newly-elected directors, for the
purpose of choosing the officers of the corporation and for the transaction of
such other business as may properly be brought before the meeting, and no notice
of such meeting to the newly-elected directors shall be necessary in order
legally to constitute the meeting, provided a quorum shall be present.
Exhibit 3.2 - Page 7
<PAGE>
3.8.2 Regular Meetings.
Regular meetings of the Board of Directors may be held, without notice, at
such times and places as shall from time to time be fixed in advance by
resolution of the Board.
3.8.3 Special Meetings.
Special meetings of the Board of Directors may be called by the Chairman of
the Board or the president, and, at the written request of a majority of the
members of the whole Board, shall be called by the Chairman of the Board, the
President or the Secretary. Notice of each special meeting of directors, stating
the time and place of the meeting and the purpose or purposes thereof, shall be
given to each director at least twenty-four (24) hours before such meeting. The
time and place of any special meeting of directors may also be fixed by a duly
executed waiver of notice thereof.
3.8.4. Chairman of the Meeting.
The Chairman of the Board, if present and acting, shall preside at all
meetings of the Board of Directors. Otherwise, the Vice-Chairman, the President,
if present and acting, or any other director chosen by the Board, shall preside.
Section 3.9. Committees of the Board.
3.9.1. Designation.
The Board of Directors, by resolution adopted by a majority of the whole
Board, may designate one or more committees, each committee to consist of two
(2) or more directors. The Board of Directors may from time to time remove
members from, or add members to, any committee. Each such committee, to the
extent provided in the resolution designating it, shall 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. However, no such
committee shall have power or authority in reference to: (1) amending the
Certificate of Incorporation; (b) adopting an agreement of merger or
consolidation; (c) recommending to the stockholders the sale, lease or exchange
of all or substantially all of the corporation's property and assets; (d)
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution; or (e) amending these By-Laws; and, unless
expressly so provided by resolution of the Board, no such committee shall have
power or authority in reference to: (i) declaring a dividend; or (ii)
authorizing the issuance of shares of stock of the corporation of any class.
3.9.2. Alternate Members.
The Board of Directors 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. In the absence or disqualification of a member of
a committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
3.9.3 Tenure; Reports; Procedures.
Each such committee shall serve at the pleasure of the Board of Directors.
It shall keep minutes of its meetings and report the same to the Board of
Directors as and when requested by the Board, and it shall observe such other
procedures with respect to its meetings as are prescribed in these By-Laws or,
to the extent not prescribed herein, as may be prescribed by the Board of
Directors.
Exhibit 3.2 - Page 8
<PAGE>
Section 3.10. Quorum and Voting.
At all meetings of the Board of Directors or any committee of the Board, a
majority of the whole Board or of the entire membership of such committee shall
be necessary and sufficient to constitute a quorum for the transaction of
business, except when a vacancy or vacancies prevents such a majority, whereupon
a majority of the directors in office or appointed to such committee shall
constitute a quorum, provided that such majority shall constitute at least
one-third of the whole Board or membership of the committee, as the case may be.
The vote of a majority of the directors or members of the committee present at
any meeting at which a quorum is present shall be the act of the Board of
Directors or of such committee, except as may be otherwise specifically provided
by statute or the Certificate of Incorporation or these By-Laws. 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 of the Board which
authorizes a contract or transaction between the corporation and one or more of
its directors, or between the corporation and any other corporation,
partnership, association or other organization in which one or more of the
directors of the corporation are directors or officers, or have a financial
interest. If a quorum shall not be present at any meeting of the Board of
Directors or any committee of the Board, the members of the Board or such
committee present thereat may adjourn the meeting from time to time, without
notice other than an announcement at the meeting, until a quorum shall be
present.
Section 3.11. Telephone Participation.
Members of the Board of Directors or of any committee of the Board may
participate in a meeting of the Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in a meeting in
accordance with this section shall constitute presence in person at such
meeting.
Section 3.12. Action Without a Meeting.
Any action required or permitted to be taken at any meeting of the Board of
Directors or of any committee of the Board 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 or committee.
Section 3.13 Compensation.
The Board of Directors is authorized to make provision for reasonable
compensation to its members for their services as directors and to fix the basis
and conditions upon which this compensation shall be paid. Any director may also
serve the corporation in any other capacity and receive compensation therefore
in any form.
Section 3.14. Reliance on Books and Records.
A member of the Board of Directors or of any committee thereof designated
by the Board as provided in these By-Laws, shall, in the performance of his
duties, be fully protected in relying in good faith upon the books of account or
reports made to the corporation by any of its officers, or by an independent
certified public accountant or by an appraiser selected with reasonable care by
the Board of Directors or by any such committee, or in relying in good faith
upon other records of the corporation.
Exhibit 3.2 - Page 9
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ARTICLE IV
Notices
Section 4.1. Delivery of Notices.
Notices to directors and stockholders may be delivered personally by mail.
A notice by mail shall be deemed to be given at the time when it is deposited in
the post office or a letter box, enclosed in a post-paid sealed wrapper and
addressed to the person entitled to notice at his address appearing on the books
of the corporation, unless any such person shall have filed with the Secretary
of the corporation a written request that notices intended for him be mailed or
delivered to some other address, in which case notice shall be mailed to or
delivered at the address designated in such request. Notice to any director may
also be given by telephone, by telegram, or by leaving the notice at the
residence or usual place of business of the director.
Section 4.2 Waiver of Notice.
Whenever notice is required to be given by statute, the Certificate of
Incorporation of these By-Laws, a written waiver thereof, signed by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. 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 to be specified in any written waiver of notice
unless so required by the Certificate of Incorporation of these By-Laws.
ARTICLE V
Officers
Section 5.1 Executive Officers.
The executive officers of the corporation shall be a Chairman of the Board,
a President, a Chief Executive officer, a Treasurer, a Chief Financial Officer,
a Chief Operating Officer, a Secretary and, if deemed necessary, expedient or
desirable by the Board of Directors, an Executive Vice-President and one or more
other Senior Vice Presidents. The Chairman of the Board, President and Chief
Executive Officer shall be selected from among the directors, but no other
executive officer need be a member of the Board of Directors. Two or more
offices may be held by the same person, but no office shall execute, acknowledge
or verify any instrument in more than one capacity. The executive officers of
the corporation shall be elected annually by the Board of Directors at its first
meeting following the meeting of stockholders at which the Board was elected.
Section 5.2 Other Officers and Agents.
The corporation may also have such other officers which such titles and
duties as shall be stated in these By-Laws or in a resolution of the Board of
directors which is not inconsistent with these By-Laws. The Board of Directors
may elect, or may delegate to the Chairman of the Board or President authority
to appoint and remove, and to fix the duties, compensation and terms of office
of, one or more Assistant Treasurers and Assistant Secretaries and such other
officers and agents as the Board may at any time or from time to time determine
to be advisable.
Exhibit 3.2 - Page 10
<PAGE>
Section 5.3. Tenure; Resignation; Removal.
Each officer of the corporation shall hold office until his successor is
elected or appointed or until his earlier displacement from office by
resignation, removal or otherwise; provided, that if the term of the office of
any officer elected or appointed pursuant to Section 5.2 of these By-Laws shall
have been fixed by the Board of Directors or by the Chairman of the Board or
President acting under authority delegated to him by the Board, he shall cease
to hold such office not later than the date of expiration of such term,
regardless of whether any other person shall have been elected or appointed to
succeed him. Any officer may resign at any time by giving written notice to the
corporation and may be removed for cause or without cause by the Board of
Directors, or by the Chairman of the Board or President acting under authority
delegated to him by the Board of Directors pursuant to Section 5.2 of these
By-Laws; provided, that any such removal shall be without prejudice to the
rights, if any, of the officer so removed under any contract of service or other
agreement with the corporation.
Section 5.4 Compensation.
The compensation of all officers of the corporation shall be fixed by the
Board of Directors, or by the Chairman of the Board or President acting under
authority delegated to him by the Board of Directors pursuant to Section 5.2 of
these By-Laws.
Section 5.5 Authority and Duties.
All officers as between themselves and the corporation shall be fixed by
the Board of Directors, or by the Chairman of the Board or President acting
under authority delegated to him by the Board of Directors pursuant to Section
5.2 of these By-Laws.
Section 5.6 The Secretary.
The Secretary, or an Assistant Secretary, shall attend all meetings of the
stockholders and the Board of Directors and shall record the minutes of all
proceedings taken at such meetings, or maintain all documents evidencing
corporate actions taken by written consent of the stockholders or of the Board
of Directors, in a book to be kept for that purpose; and he shall perform like
duties for any committees of the Board of Directors when required. He shall see
to it that all notices of meetings of the stockholders and of special meetings
of the Board of Directors are duly given in accordance with these By-Laws or as
required by statute; he shall be the custodian of the seal of the corporation
and, when authorized by the Board of Directors, he shall cause the corporate
seal to be affixed to any document requiring it, and, when so affixed, attested
by his signature as Secretary; and he shall perform such other duties as may
from time to time be prescribed by the Board of Directors.
ARTICLE VI
General Provisions
Section 6.1 Dividends and Distributions; Reserves.
Subject to all applicable provisions of law, the Certificate of
Incorporation and any indenture or other agreement to which the corporation is a
party or by which it is bound, the Board of Directors may declare to be payable,
in cash, in other property or in shares of the corporation of any class or
series, such dividends and distributions upon or in respect of outstanding
shares of the corporation of any class or series as the Board may at any time or
from time to time deem to be advisable. Before declaring any such dividend or
distribution, the Board of Directors may cause to be set aside, out of any funds
or other property or assets of the corporation legally available for the payment
of dividends or distributions, such sum or sums as the Board, in their absolute
discretion, may consider to be 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 Board may deem
conducive to the interest of the corporation, and the Board may modify or
abolish any such reserve in the manner in which it was created.
Exhibit 3.2 - Page 11
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Section 6.2 Checks, Notes, Etc.
All checks or other orders for the payment of money, all notes or other
instruments evidencing indebtedness of the corporation and all receipts for
money paid to the corporation shall be signed, drawn, accepted, endorsed or
otherwise executed on its behalf, as the case may be, in such manner and by such
officer or officers or such other person or persons as the Board of Directors
may from time to time designate. The Board of Directors may authorize the use of
facsimile signatures of any of any officer or employee in lieu of manual
signatures.
Section 6.3. Fiscal Year.
The fiscal year of the corporation shall be fixed, and may from time to
time be changed, by resolution of the Board of Directors.
Section 6.4. Seal.
The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Nevada." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
Section 6.5. Voting of Securities of Other Corporations.
In the event that the corporation shall at any time or from time to time
own and have power to vote any securities (including but not limited to shares
of stock) of an other issuer, they shall be voted by such person or persons, to
such extent and in such manner as may be determined by the Board of Directors.
ARTICLE VII
Amendment
A majority of the whole Board of Directors shall have the power, by
resolution, to amend or repeal these By-Laws or to adopt new by-laws; provided,
however, that such power shall not divest the stockholders of the power, nor
limit their power, to adopt, amend or repeal by-laws.
ARTICLE VIII
Indemnification of Directors, Officers and Employees
Except to the extent expressly prohibited by the Nevada Corporation Law,
the corporation shall indemnify each person made or threatened to be made a
party to any action or proceeding, whether civil or criminal, by reason of the
fact that such person or such person's testator or intestate is or was a
director, officer or employee of the corporation, or serves or served at the
request of the corporation, any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against
judgment, fines, penalties, amounts paid in settlement and reasonable expenses,
including attorney's fees, incurred in connection with such action or
proceeding, or any appeal therein, provided that no such indemnification shall
be made if a judgment or other final adjudication adverse to such person
establishes that his or her acts were committed in bad faith or were the result
of active and deliberate dishonesty and were material to the cause of action so
adjudicated, or that he or she personally gained in fact a financial profit or
other advantage to which he or she was not legally entitled, and provided
further that no such indemnification shall be required with respect to any
settlement or other nonadjudicated disposition of any threatened or pending
action or proceeding unless the corporation has given consent to such settlement
or other disposition.
Exhibit 3.2 - Page 12
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The corporation may advance or promptly reimburse upon request any person
entitled to indemnification hereunder for all expenses, including attorney's
fees, reasonably incurred in defending any action or proceeding in advance of
the final disposition thereof upon receipt of an undertaking by or on behalf of
such person to repay such amount if such person is ultimately found not to be
entitled to indemnification or, where indemnification is granted, to the extent
the expenses so advanced or reimbursed exceed the amount to which such person
shall cooperate in good faith with any request by the corporation that common
counsel be utilized by the parties to an action or proceeding who are similarly
situated unless to do so would be inappropriate due to actual or potential
differing interests between or among such parties.
Nothing herein shall limit or affect any right of any person otherwise than
hereunder to indemnification or expenses, including attorney's fees, under any
statute, rule, regulation, certificate of incorporation, by-law, insurance
policy, contract or otherwise.
Anything in these by-laws to the contrary notwithstanding no elimination of
this by-law, and no amendment of this by-law adversely affecting the right of
any person to indemnification or advancement of expenses hereunder shall be
effective until the 60th day following notice to such person or such action, and
no elimination of or amendment to this by-law shall deprive any person of his or
her rights hereunder arising out of alleged or actual occurrences, acts or
failures to act prior to such 60th day.
The corporation shall not, except by elimination or amendment of this
by-law in a manner consistent with the preceding paragraph, take any corporate
action or enter into any agreement which prohibits, or otherwise limits the
rights of any person to, indemnification in accordance with the provisions of
this by-law. The indemnification of any person provided by this by-law shall
continue after such person has ceased to be a director, officer or employee of
the corporation and shall inure to the benefit of such person's heirs,
executors, administrators and legal representatives.
The corporation is authorized to enter into agreements with any of its
directors, officers or employees extending rights to indemnification and
advancement of expenses to such person to the fullest extent permitted by
applicable law, but the failure to enter into any such agreement shall not
affect or limit the rights of such person pursuant to this by-law, it being
expressly recognized hereby that all directors, officers and employees of the
corporation, by serving as such after the adoption hereof, are acting in
reliance hereon and that the corporation is estopped to contend otherwise.
In case any provision in this by-law shall be determined at any time to be
unenforceable in any respect, the other provisions shall not in any way be
affected or impaired thereby, and the affected provision shall be given the
fullest possible enforcement in the circumstances, it being the intention of the
corporation to afford indemnification and advancement of expenses to its
directors, officers and employees, acting in such capacities or in the other
capacities mentioned herein, to the fullest extent permitted by law.
For purposes of this by-law, the corporation shall be deemed to have
requested a person to serve an employee benefit plan where the performance by
such person of his or her duties to the corporation also imposes duties on, or
otherwise involves services by, such person to the plan or participants or
beneficiaries of the plan, and excise taxes assessed on a person with respect to
an employee benefit plan pursuant to applicable law shall be considered
indemnifiable expenses. For purposes of this by-law, the term "corporation"
shall include any legal successor to the corporation, including any corporation
which acquires all or substantially all of the assets of the corporation in one
or more transactions.
Dated: July 29, 1999
Exhibit 3.2 - Page 13
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CERTIFICATION
The undersigned does hereby certify that he is the Secretary of the
Corporation, which is a duly organized and existing Corporation under and by
virtue of the laws of the State of Nevada; that the above and foregoing bylaws
of said corporation were duly and regularly adopted as such by the board of
directors of the Corporation by unanimous written consent and was approved by
holders of a majority of the Corporation issued and outstanding shares of common
stock by written consent; and that the above and foregoing bylaws are now in
full force and effect.
Dated this 29th day of July 1999.
------ ------
s/s David Harwell
-------------------------------
David Harwell, Secretary
Exhibit 3.2 - Page 14
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