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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
GENERAL FORM FOR REGISTRATION OF SECURITIES
Pursuant to Section 12(b) or (g) of
The Securities Exchange Act of 1934
SCOOP, INC.
------------------------------------------------------
(exact name of registrant as specified in its charter)
Delaware 33-0726608
- ------------------------------- --------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
2540 Red Hill Avenue, Suite 100
Santa Ana, California 92705
- ---------------------------------------- ---------------------------
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
None None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, Par Value $.001 Per Share
- ------------------------------------------------------------------------------
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Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
This registration statement relates to the registration with the
Securities and Exchange Commission of shares of Common Stock, par value
$.001 per share ("Common Stock") of Scoop, Inc., a Delaware corporation (the
"Registrant"). The description of the Common Stock to be registered
hereunder is set forth under the caption "Description of Capital Stock" in
the preliminary prospectus dated October 30, 1996 included in its
Registration Statement on Form SB-2 (No. 333-15129), as amended, filed with
the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended, incorporated herein by reference.
Item 2. EXHIBITS
1. Specimen of Certificate representing Registrant's Common Stock.
2. Certificate of Incorporation of Registrant.
3. Form of Bylaws of Registrant.
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Act of
1934, the Registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
Date: March 21, 1997 SCOOP, INC.
By: /s/ DANIEL L. PELEKOUDAS
---------------------------
Daniel L. Pelekoudas
Secretary
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EXHIBIT INDEX
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Exhibit No. Description Page No.
- ----------- ----------- ---------
1. Specimen of Certificate Representing
Registrant's Common Stock
2. Certificate of Incorporation of Registrant
3. Form of Bylaws of Registrant
4
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Number Shares
SI
COMMON STOCK COMMON STOCK
INCORPORATED UNDER THE LAWS SEE REVERSE FOR CERTAIN DEFINITIONS
OF THE STATE OF DELAWARE
CUSIP 809136 10 4
SCOOP!
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INFORMATION SERVICES
--------------------
THIS CERTIFIES THAT
IS THE RECORD HOLDER OF
FULLY PAID AND NONASSESSABLE SHARES OF THE COMMON STOCK, $.001 PAR VALUE, OF
SCOOP, INC.
transferable on the books of the Corporation by the holder hereof in person or
by a duly authorized attorney upon surrender of this Certificate properly
endorsed. This Certificate is not valid unless countersigned and registered
by the Transfer Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated:
/s/ Daniel L. Pelekoudas /s/ Mark A. Davidson
---------------------------- ------------------------------------
GENERAL COUNSEL AND SECRETARY PRESIDENT AND CHIEF FINANCIAL OFFICER
COUNTERSIGNED AND REGISTERED:
AMERICAN STOCK TRANSFER & TRUST COMPANY
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
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The Corporation shall furnish without charge to each stockholder who so
requests a statement of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock of the
Corporation or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights. Such requests shall be made
to the Corporation's Secretary at the principal office of the Corporation.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT-.....Custodian.......
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act..........................
in common (State)
UNIF TRF MIN ACT-.......Custodian (until age.......)
(Cust)
............under Uniform Transfers
(Minor)
to Minors Act......................
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED,_____________________hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________________
__________________________________
_______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
_______________________________________________________________________________
_________________________________________________________________________Shares
of the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
_______________________________________________________________________Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated______________________
X_________________________________________________
X_________________________________________________
THE SIGNATURE(S) TO THIS ASSIGNMENT MUST
NOTICE: CORRESPOND WITH THE NAME(S) AS WRITTEN UPON THE
FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
Signature(s) Guaranteed
By___________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED
BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM), PURSUANT
TO S.E.C. RULE 17Ad-15.
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CERTIFICATE OF INCORPORATION
OF
SCOOP, INC.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes
hereinafter stated, under the provisions and subject to the requirements of
the laws of the State of Delaware (particularly Chapter 1, Title 8 of the
Delaware Code and the acts amendatory thereof and supplemental thereto, and
known, identified and referred to as the "General Corporation Law of the
State of Delaware"), hereby certifies that:
FIRST: The name of the corporation (hereinafter the "Corporation") is:
Scoop, Inc.
SECOND: The address, including street, number, city and county, of
the registered office of the Corporation in the State of Delaware is:
THE CORPORATION TRUST COMPANY
Corporation Trust Center
1209 Orange Street
Wilmington, New Castle County, Delaware 19801
THIRD: The nature of the business and the purposes to be conducted
and promoted by the Corporation shall be to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The Corporation shall have authority to issue 25,000,000
shares of stock, consisting of 20,000,000 shares of Common Stock, par value
$0.001 per share, and 5,000,000 shares of Preferred Stock, par value $0.001
per share.
FIFTH: The shares of Preferred Stock may be issued from time to time
in one or more series. The Board of Directors is authorized to fix by
resolution the designations, powers, preferences and relative, participating,
optional or other special rights (including voting rights, if any, and
conversion rights, if any), and qualifications, limitations or restrictions
thereof, of any such series of Preferred Stock, and the number of shares
constituting any such series, or all or any of them; and to increase or
decrease the number of shares of any series subsequent to the issue of shares
of that series, but not below the number of shares then outstanding. Except
as otherwise provided (i) by law, (ii) by this Certificate of Incorporation
as amended from time to time, or (iii) by resolutions of the Board of
Directors fixing the powers and preferences of any class or series of shares
as to which the Board of Directors has been expressly vested with authority
to fix the powers and preferences, (a) the Common Stock shall possess the
full voting power of the Corporation and (b) the number of authorized shares
of any class or classes of stock may be increased or
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decreased (but not below the number of shares thereof then outstanding) by
the affirmative vote of the holders of a majority of the stock of the
Corporation entitled to vote.
SIXTH: The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of
subsection (b) of Section 102 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented.
SEVENTH: The name and the mailing address of the incorporator are as
follows:
Rita K. Pfetzing
650 Town Center Drive, Suite 2000
Costa Mesa, California 92626-1925
EIGHTH: The Corporation is to have perpetual existence.
NINTH: The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of Delaware, as the
same may be amended and supplemented, indemnify any and all persons whom it
shall have power to indemnify under said section from and against any and all
of the expenses, liabilities or other matters referred to in or covered by
said section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled
under any Bylaw, agreement, vote of stockholders or disinterested directors
or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure
to the benefit of the heirs, executors and administrators of such person.
TENTH: From time to time any of the provisions of this certificate of
incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and
all rights at any time conferred upon the stockholders of the Corporation by
this certificate of incorporation are granted subject to the provisions of
this Article TENTH. In addition to the other powers expressly granted by
statute, the Board of Directors shall have the power to adopt, repeal, alter,
amend and rescind the Bylaws of the Corporation.
Signed on October 11, 1996
/s/ RITA K. PFETZING
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Rita K. Pfetzing
Incorporator
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BYLAWS
OF
SCOOP, INC.,
a Delaware corporation
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TABLE OF CONTENTS
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Page
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ARTICLE I OFFICES......................................................... 1
Section 1.1 Registered Office......................................... 1
Section 1.2 Other Offices............................................. 1
ARTICLE II MEETINGS OF STOCKHOLDERS........................................ 1
Section 2.1 Place of Meetings......................................... 1
Section 2.2 Annual Meeting of Stockholders............................ 1
Section 2.3 Quorum; Adjourned Meetings and Notice Thereof............. 1
Section 2.4 Voting.................................................... 2
Section 2.5 Proxies................................................... 2
Section 2.6 Special Meetings.......................................... 2
Section 2.7 Notice of Stockholder's Meetings.......................... 2
Section 2.8 Stockholder Proposals..................................... 2
Section 2.9 Maintenance and Inspection of Stockholder List............ 3
ARTICLE III DIRECTORS...................................................... 3
Section 3.1 Number, Election and Tenure............................... 3
Section 3.2 Vacancies................................................. 4
Section 3.3 Notification of Nomination................................ 4
Section 3.4 Powers.................................................... 5
Section 3.5 Directors' Meetings....................................... 5
Section 3.6 Regular Meetings.......................................... 5
Section 3.7 Special Meetings.......................................... 5
Section 3.8 Quorum.................................................... 5
Section 3.9 Action Without Meeting.................................... 6
Section 3.10 Telephonic Meetings....................................... 6
Section 3.11 Committees of Directors................................... 6
Section 3.12 Minutes of Committee Meetings............................. 6
Section 3.13 Compensation of Directors................................. 6
Section 3.14 Indemnification........................................... 7
ARTICLE IV OFFICERS........................................................ 9
Section 4.1 Officers.................................................. 9
Section 4.2 Election of Officers...................................... 9
Section 4.3 Subordinate Officers...................................... 9
Section 4.4 Compensation of Officers.................................. 9
Section 4.5 Term of Office; Removal and Vacancies..................... 9
Section 4.6 Chairman of the Board..................................... 9
Section 4.7 President.................................................10
Section 4.8 Vice President............................................10
Section 4.9 Secretary................................................ 10
Section 4.10 Assistant Secretaries.................................... 10
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TABLE OF CONTENTS (Cont')
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Page
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Section 4.11 Chief Financial Officer................................. 10
Section 4.12 Assistant Treasurer..................................... 11
ARTICLE V CERTIFICATES OF STOCK.......................................... 11
Section 5.1 Certificates............................................ 11
Section 5.2 Signatures on Certificates.............................. 11
Section 5.3 Statement of Stock Rights, Preferences, Privileges...... 11
Section 5.4 Lost Certificates....................................... 12
Section 5.5 Transfers of Stock...................................... 12
Section 5.6 Fixing Record Date...................................... 12
Section 5.7 Registered Stockholders................................. 12
ARTICLE VI GENERAL PROVISIONS............................................ 13
Section 6.1 Dividends............................................... 13
Section 6.2 Payment of Dividends.................................... 13
Section 6.3 Checks.................................................. 13
Section 6.4 Fiscal Year............................................. 13
Section 6.5 Corporate Seal.......................................... 13
Section 6.6 Manner of Giving Notice................................. 13
Section 6.7 Waiver of Notice........................................ 13
Section 6.8 Annual Statement........................................ 13
Section 6.9 Minutes and Accounting Records.......................... 14
ARTICLE VII AMENDMENTS................................................... 14
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BYLAWS
OF
SCOOP, INC.,
a Delaware corporation
ARTICLE I
OFFICES
--------
Section 1.1 REGISTERED OFFICE. The registered office shall be in the
City of Dover, County of Kent, State of Delaware.
Section 1.2 OTHER OFFICES. The corporation may also have offices at
such other places both within and without the State of Delaware as the Board
of Directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
------------------------
Section 2.1 PLACE OF MEETINGS. Meetings of stockholders shall be held
at any place within or without the State of Delaware designated by the Board
of Directors. In the absence of any such designation, stockholders' meetings
shall be held at the principal executive office of the corporation.
Section 2.2 ANNUAL MEETING OF STOCKHOLDERS. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and
any other proper business may be transacted.
Section 2.3 QUORUM; ADJOURNED MEETINGS AND NOTICE THEREOF. A majority
of the stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
Bylaws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue
to transact business until adjournment. If, however, such quorum shall not
be present or represented at any meeting of the stockholders, a majority of
the voting stock represented in person or by proxy may adjourn the meeting
from time to time, without notice other than announcement at the meeting,
until a quorum shall be present or represented. At such adjourned meeting at
which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days,
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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 thereat.
Section 2.4 VOTING. When a quorum is present at any meeting, the vote
of the holders of a majority of the stock having voting power present in
person or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which by express provision of the
statutes, or the Certificate of Incorporation, or these Bylaws, a different
vote is required in which case such express provision shall govern and
control the decision of such question.
Section 2.5 PROXIES. At each meeting of the stockholders, each
stockholder having the right to vote may vote in person or may authorize
another person or persons to act for him by proxy appointed by an instrument
in writing subscribed by such stockholder and bearing a date not more than
three years prior to said meeting, unless said instrument provides for a
longer period. All proxies must be filed with the Secretary of the
corporation at the beginning of each meeting in order to be counted in any
vote at the meeting. Each stockholder shall have one vote for each share of
stock having voting power, registered in his name on the books of the
corporation on the record date set by the Board of Directors as provided in
Article V, Section 5.6 hereof. All elections shall be had and all questions
decided by a plurality vote.
Section 2.6 SPECIAL MEETINGS. Special meetings of the stockholders of
the corporation for any purpose or purposes may be called at any time by the
Board of Directors, the Chairman of the Board of Directors, the President of
the corporation or stockholders holding shares entitled to cast not less than
10% of the votes at such meeting. Special meetings of the stockholders of
the corporation may not be called by any other person or persons.
Section 2.7 NOTICE OF STOCKHOLDER'S MEETINGS. Whenever stockholders
are required or permitted to take any action at a meeting, a written notice
of the meeting shall be given which notice shall state the place, date and
hour of the meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. The written notice of any meeting
shall be given to each stockholder entitled to vote at such meeting not less
than ten nor more than sixty days before the date of the meeting. If mailed,
notice is given when deposited in the United States mail, postage prepaid,
directed to the stockholder at his address as it appears on the records of
the corporation.
Section 2.8 STOCKHOLDER PROPOSALS. At an annual meeting of
stockholders, only such business shall be conducted, and only such proposals
shall be acted upon, as shall have been brought before the annual meeting (a)
by, or at the direction of, a majority of the directors, or (b) by any
stockholder of the corporation who complies with the notice procedures set
forth in this Section 2.8. For a proposal to be properly brought before an
annual meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the Secretary of the corporation. To be timely,
a stockholder's notice must be delivered to, or mailed and received at, the
principal executive offices of the corporation not less than 60 days prior to
the scheduled annual meeting, regardless of any postponements, deferrals or
adjournments of that meeting to a later date; provided, however, that if less
than 70 days' notice or prior public disclosure of the date of the scheduled
annual meeting is given or made, notice by the
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stockholder, to be timely, must be so delivered or received not later than
the close of business on the tenth day following the earlier of the day on
which such notice of the date of the scheduled annual meeting was mailed or
the day on which such public disclosure was made. A stockholder's notice to
the Secretary shall set forth as to each matter the stockholder proposes to
bring before the annual meeting (a) a brief description of the proposal
desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (b) the name and address, as
they appear on the corporation's books, of the stockholder proposing such
business and any other stockholders known by such stockholder to be
supporting such proposal, (c) the class and number of shares of the
corporations's stock which are beneficially owned by the stockholder on the
date of such stockholder notice and by any other stockholders known by such
stockholder to be supporting such proposal on the date of such stockholder
notice, and (d) any financial interest of the stockholder in such proposal.
The presiding officer of the annual meeting shall determine and declare
at the annual meeting whether the stockholder proposal was made in accordance
with the terms of this Section 2.8. If the presiding officer determines that
a stockholder proposal was not made in accordance with the terms of this
Section 2.8, he shall so declare at the annual meeting and any such proposal
shall not be acted upon at the annual meeting.
This provision shall not prevent the consideration and approval or
disapproval at the annual meeting of reports of officers, directors and
committees of the Board of Directors, but, in connection with such reports,
no new business shall be acted upon at such annual meeting unless stated,
filed and received as herein provided.
Section 2.9 MAINTENANCE AND INSPECTION OF STOCKHOLDER LIST. The
officer who has charge of the stock ledger of the corporation shall prepare
and make, at least ten days before every meeting of stockholders, 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. 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 days
prior to the meeting, either at a place within the city where the meeting is
to be held, which place shall be specified in the notice of the meeting, or,
if not so specified, at the place where the meeting is to be held. The list
shall also be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is
present.
ARTICLE III
DIRECTORS
-----------
Section 3.1 NUMBER, ELECTION AND TENURE. The authorized number of
directors which shall constitute the whole Board shall not be less than five
(5) nor more than nine (9). The exact number of directors shall be fixed by
a resolution duly adopted by the Board of Directors.
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When permitted under applicable law, the directors shall be divided into
three classes, as nearly equal in number as possible, with a term of three
years each, and the term of office of one class shall expire each year. One
class shall hold initially for a term expiring at the first annual meeting of
the stockholders following classification of the Board, another class shall
hold office initially for a term expiring at the second annual meeting of the
stockholders following classification of the Board, and another class shall
hold office initially for a term expiring at the third annual meeting of
stockholders following classification of the Board. Beginning with the first
annual meeting of the stockholders and each succeeding annual meeting of
stockholders, the directors of the class of directors whose term expires at
such meeting will be elected to hold office for a term expiring at the third
succeeding annual meeting. Each director will hold office for the term for
which the is elected and until his successor is duly elected and qualified;
provided, however, that unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, any or all of the directors of the corporation
may be removed from office by the stockholders at any annual or special
meeting of stockholders by the affirmative vote of a majority of the
outstanding shares of Common Stock of the corporation, the notice of which
shall state that the removal of a director or directors is among the purposes
of the meeting.
Section 3.2 VACANCIES. Vacancies on the Board of Directors by reason
of death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors shall be filled solely by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. Any director elected in accordance with the preceding sentence
shall hold office for the remainder of the full term of the new directorship
created or the directorship in which the vacancy occurred and until such
director's successor shall have been duly elected and qualified. No decrease
in the number of directors constituting the Board of Directors shall shorten
the term of any incumbent director.
Section 3.3 NOTIFICATION OF NOMINATION. Subject to the rights, if any,
of the holders of shares of Preferred Stock then outstanding, if any, only
persons who are nominated in accordance with the following procedures shall
be eligible for election as directors. Nominations of person for election to
the Board of Directors of the corporation may be made at a meeting of
stockholders by or at the direction of the Board of Directors, by any
nominating committee or person appointed by the Board, or by any stockholder
of the corporation entitled to vote for the election of directors at the
meeting who complies with the notice procedures set forth in this Section
3.3. Such nominations, other than those made by or at the direction of the
Board or by any nominating committee or person appointed by the Board, shall
be made pursuant to timely notice in writing to the Secretary of the
corporation. To be timely, a stockholder's notice must be delivered to, or
mailed and received at, the principal executive offices of the corporation
not less than 60 days prior to the scheduled annual meeting, regardless of
any postponements, deferrals or adjournments of that meeting to a later date;
provided, however, that if less than 70 days' notice or prior public
disclosure of the date of the scheduled annual meeting is given or made,
notice by the stockholder, to be timely, must be so delivered or received not
later than the close of business on the tenth day following the earlier of the
day on which such notice of the date of the scheduled annual meeting was
mailed or the day on which such public disclosure was made. A stockholder's
notice to the Secretary shall set forth
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(a) as to each person whom the stockholder proposes to nominate for election
or reelection as a director, (i) the name, age, business address and
residence address of the person, (ii) the principal number of shares of
capital stock of the corporation which are beneficially owned by the person
and (iii) any other information relating to the person that is required to be
disclosed in solicitations for proxies for election of directors pursuant to
Rule 14a under the Securities Exchange Act of 1934, as amended; and (b) as to
the stockholder giving the notice, (i) the name and address, as they appear
on the corporation's books, of the stockholder and (ii) the class and number
of shares of the corporation's stock which are beneficially owned by the
stockholder on the date on such stockholder notice. The corporation may
require any proposed nominee to furnish such other information as may
reasonably be required by the corporation to determine the eligibility of
such proposed nominee to serve as director of the corporation.
The presiding officer of the annual meeting shall determine and declare
at the annual meeting whether the nomination was made in accordance with the
terms of this Section 3.3. If the presiding officer determines that a
nomination was not made in accordance with the terms of this Section 3.3, he
shall so declare at the annual meeting and any such defective nomination
shall be disregarded.
Section 3.4 POWERS. The property and business of the corporation shall
be managed by or under the direction of its Board of Directors. In addition
to the powers and authorities by these Bylaws expressly conferred upon them,
the Board may exercise all such powers of the corporation and do all such
lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws directed or required to be exercised or done
by the stockholders.
Section 3.5 DIRECTORS' MEETINGS. The directors may hold their meetings
and have one or more offices, and keep the books of the corporation outside
of the State of Delaware.
Section 3.6 REGULAR MEETINGS. 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 the Board.
Section 3.7 SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the President on forty-eight hours' notice to each
director, either personally or by mail or by telegram; special meetings shall
be called by the President or the Secretary in like manner and on like notice
on the written request of two directors unless the Board consists of only one
director; in which case special meetings shall be called by the President or
Secretary in like manner or on like notice on the written request of the sole
director.
Section 3.8 QUORUM. At all meetings of the Board of Directors a
majority of the authorized number of directors shall be necessary and
sufficient to constitute a quorum for the transaction of business, and the
vote of a majority of the directors present at any meeting at which there is
a quorum, shall be the act of the Board of Directors, except as may be
otherwise specifically provided by statute, by the Certificate of
Incorporation or by these Bylaws. If a quorum shall not be present at any
meeting of the Board of Directors the directors present
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thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present. If only one
director is authorized, such sole director shall constitute a quorum.
Section 3.9 ACTION WITHOUT MEETING. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, 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 minutes of proceedings of the Board or
committee.
Section 3.10 TELEPHONIC MEETINGS. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee, by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such
meeting.
Section 3.11 COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one or more of the directors of
the corporation. The Board 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.
Any such committee, to the extent provided in the resolution of the Board of
Directors, 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; but no such committee shall have the power
or authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending
the Bylaws of the corporation; and, unless the resolution or the Certificate
of Incorporation expressly so provide, no such committee shall have the power
or authority to declare a dividend or to authorize the issuance of stock.
Section 3.12 MINUTES OF COMMITTEE MEETINGS. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 3.13 COMPENSATION OF DIRECTORS. Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, the Board of Directors
shall have the authority to fix the compensation of directors. The directors
may be paid their expenses, if any, of attendance at each meeting of the
Board of Directors and may be paid a fixed sum for attendance at each meeting
of the Board of Directors or a stated salary as director. No such payment
shall preclude any director from serving the corporation in any other
capacity and receiving
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compensation therefor. Members of special or standing committees may be
allowed like compensation for attending committee meetings.
Section 3.14 INDEMNIFICATION.
(a) The corporation shall indemnify any person who was or
is made a 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 (other than an action by or in the right of
the corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) The corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that no such
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation unless and only
to the extent that the Court of Chancery of Delaware or the court in which
such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or
agent of the corporation shall be successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in paragraphs (a) and
(b), or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
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(d) Any indemnification under paragraphs (a) and (b)
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in paragraphs
(a) and (b). Such determination shall be made (1) by the Board of Directors
by a majority vote of a quorum consisting of directors who were not parties
to such action, suit or proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding as authorized by the
Board of Directors in the manner provided in paragraph (d) upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to
repay such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the corporation as authorized in this Section
3.14.
(f) The indemnification provided by this Section 3.14
shall not be deemed exclusive of any other rights to which those indemnified
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(g) The Board of Directors may authorize, by a vote of a
majority of a quorum of the Board of Directors, the corporation to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability
under the provisions of this Section 3.14.
(h) For the purposes of this Section 3.14, references to
"the corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors,
officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, limited liability company, trust or other enterprise, shall stand in
the same position under the provisions of this Section with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to "fines"
shall include any excise
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taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee
or agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to
in this section.
ARTICLE IV
OFFICERS
----------
Section 4.1 OFFICERS. The officers of this corporation shall be chosen
by the Board of Directors and shall include a Chairman of the Board, a
President, a Secretary, and a Chief Financial Officer. The corporation may
also have at the discretion of the Board of Directors such other officers as
are desired, including one or more Vice Presidents, one or more Assistant
Secretaries and Assistant Treasurers, and such other officers as may be
appointed in accordance with the provisions of Section 4.3 hereof. In the
event there are two or more Vice Presidents, then one or more may be
designated as Executive Vice President, Senior Vice President, or other
similar or dissimilar title. At the time of the election of officers, the
directors may by resolution determine the order of their rank. Any number of
offices may be held by the same person, unless the Certificate of
Incorporation or these Bylaws otherwise provide.
Section 4.2 ELECTION OF OFFICERS. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers
of the corporation.
Section 4.3 SUBORDINATE 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 4.4 COMPENSATION OF OFFICERS. The salaries of all officers and
agents of the corporation shall be fixed by the Board of Directors.
Section 4.5 TERM OF OFFICE; REMOVAL AND VACANCIES. The officers of the
corporation shall hold office until their successors are chosen and qualify
in their stead. 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. If the office of any officer or officers becomes vacant for
any reason, the vacancy shall be filled by the Board of Directors.
Section 4.6 CHAIRMAN OF THE BOARD. The Chairman of the Board, if such
an officer be elected, shall, if present, preside at all meetings of the
Board of Directors and exercise and perform such other powers and duties as
may be from time to time assigned to him by the Board of Directors or
prescribed by these Bylaws. If there is no President, the Chairman of the
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Board shall in addition be the Chief Executive Officer of the corporation and
shall have the powers and duties prescribed in Section 4.7 of this Article IV.
Section 4.7 PRESIDENT. Subject to such supervisory powers, if any, as
may be given by the Board of Directors to the Chairman of the Board, if there
be such an officer, the President shall be the Chief Executive Officer of the
corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business and officers of
the corporation. He shall preside at all meetings of the stockholders and,
in the absence of the Chairman of the Board, or if there be none, at all
meetings of the Board of Directors. He shall be an ex-officio member of all
committees and shall have the general powers and duties of management usually
vested in the office of President and Chief Executive Officer of
corporations, and shall have such other powers and duties as may be
prescribed by the Board of Directors or these Bylaws.
Section 4.8 VICE PRESIDENT. In the absence or disability of the
President, the Vice Presidents in order of their rank as fixed by the Board
of Directors, or if not ranked, the Vice President designated by the Board of
Directors, shall perform all the duties of the President, and when so acting
shall have all the powers of and be subject to all the restrictions upon the
President. The Vice Presidents shall have such other duties as from time to
time may be prescribed for them, respectively, by the Board of Directors.
Section 4.9 SECRETARY. The Secretary shall attend all sessions of the
Board of Directors and all meetings of the stockholders and record all votes
and the minutes of all proceedings in a book to be kept for that purpose; and
shall perform like duties for the standing committees when required by the
Board of Directors. He shall give, or cause to be given, notice of all
meetings of the stockholders and of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors or these
Bylaws. He shall keep in safe custody the seal of the corporation, and when
authorized by the Board, affix the same to any instrument requiring it, and
when so affixed it shall be attested by his signature or by the signature of
an Assistant Secretary. The Board of Directors may give general authority to
any other officer to affix the seal of the corporation and to attest the
affixing by his signature.
Section 4.10 ASSISTANT SECRETARIES. The Assistant Secretary, or if
there be more than one, the Assistant Secretaries in the order determined by
the Board of Directors, or if there be no such determination, the Assistant
Secretary designated by the Board of Directors, shall, in the absence or
disability of the Secretary, perform the duties and exercise the powers of
the Secretary and shall perform such other duties and have such other powers
as the Board of Directors may from time to time prescribe.
Section 4.11 CHIEF FINANCIAL OFFICER. The Chief Financial Officer
shall have the custody of the corporate funds and securities and shall keep
full and accurate accounts of receipts and disbursements in books belonging
to the corporation and shall deposit all moneys, and other valuable effects
in the name and to the credit of the corporation, in such depositories as may
be designated by the Board of Directors. He shall disburse the funds of the
corporation as may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the Board of Directors,
at its regular meetings, or when the Board of Directors so
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requires, an account of all his transactions as Chief Financial Officer and
of the financial condition of the corporation. If required by the Board of
Directors, he shall give the corporation a bond, in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors, for
the faithful performance of the duties of his office and for the restoration
to the corporation, in case of his death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
corporation.
Section 4.12 ASSISTANT TREASURER. The Assistant Treasurer, or if there
shall be more than one, the Assistant Treasurers in the order determined by
the Board of Directors, or if there be no such determination, the Assistant
Treasurer designated by the Board of Directors, shall, in the absence or
disability of the Chief Financial Officer, perform the duties and exercise
the powers of the Chief Financial Officer and shall perform such other duties
and have such other powers as the Board of Directors may from time to time
prescribe.
ARTICLE V
CERTIFICATES OF STOCK
---------------------
Section 5.1 CERTIFICATES. Every holder of stock of 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 of Directors, or
the President or a Vice President, and by the Secretary or an Assistant
Secretary, or the Chief Financial Officer or an Assistant Treasurer of the
corporation, certifying the number of shares represented by the certificate
owned by such stockholder in the corporation.
Section 5.2 SIGNATURES ON CERTIFICATES. Any or all of the signatures
on the certificate may be a facsimile. 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 5.3 STATEMENT OF STOCK RIGHTS, PREFERENCES, PRIVILEGES. If the
corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of
stock or series thereof and the qualification, limitations or restrictions of
such preferences and/or rights shall be set forth in full or summarized on
the face or back of the certificate which the corporation shall issue to
represent such class or series of stock, provided that, except as otherwise
provided in section 202 of the General Corporation Law of Delaware, in lieu
of the foregoing requirements, there may be set forth on the face or back of
the certificate which the corporation shall issue to represent such class or
series of stock, a statement that the corporation will furnish without charge
to each stockholder who so requests the powers, designations, preferences and
relative, participating, optional or other special rights
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of each class of stock or series thereof and the qualifications, limitations
or restrictions of such preferences and/or rights.
Section 5.4 LOST CERTIFICATES. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost, stolen or destroyed.
When authorizing such issue of a new certificate or certificates, the Board
of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the
same in such manner as it shall require and/or to give the corporation a bond
in such sum as it may direct as indemnity against any claim that may be made
against the corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 5.5 TRANSFERS OF STOCK. Upon surrender to the corporation, or
the transfer agent of the corporation, of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignation or
authority to transfer, it shall be the duty of the corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 5.6 FIXING RECORD DATE. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
the stockholders, or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled
to exercise any rights in respect of any change, conversion or exchange of
stock or for the purpose of any other lawful action, the Board of Directors
may fix a record date which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. 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.
Section 5.7 REGISTERED STOCKHOLDERS. The corporation shall be entitled
to treat the holder of record of any share or shares of stock as the holder
in fact thereof and accordingly shall not be bound to recognize any equitable
or other claim or interest in such share on the part of any other person,
whether or not it shall have express or other notice thereof, save as
expressly provided by the laws of the State of Delaware.
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ARTICLE VI
GENERAL PROVISIONS
------------------
Section 6.1 DIVIDENDS. Dividends upon the capital stock of the
corporation, subject to the provisions of the Certificate of Incorporation,
if any, 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 6.2 PAYMENT OF DIVIDENDS. 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 fund 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 interests of the corporation, and the directors may abolish any such
reserve.
Section 6.3 CHECKS. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 6.4 FISCAL YEAR. The fiscal year of the corporation shall be
fixed by resolution of the Board of Directors.
Section 6.5 CORPORATE SEAL. The corporate seal shall have inscribed
thereon the name of the corporation, the year of its organization and the
words "Corporate Seal, Delaware". Said seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 6.6 MANNER OF GIVING NOTICE. Whenever, under the provisions of
the statutes or of the Certificate of Incorporation or of these Bylaws,
notice is required to be given to any director or stockholder, it shall not
be construed to mean personal notice, but such notice may be given in
writing, by mail, addressed to such director or stockholder, at his address
as it appears on the records of the corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the
same shall be deposited in the United States mail. Notice to directors may
also be given by telegram.
Section 6.7 WAIVER OF NOTICE. Whenever any notice is required to be
given under the provisions of the statutes or of the Certificate of
Incorporation or of these Bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed to be equivalent.
Section 6.8 ANNUAL STATEMENT. The Board of Directors shall present at
each annual meeting, and at any special meeting of the stockholders when
called for by vote of the stockholders, a full and clear statement of the
business and condition of the corporation.
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Section 6.9 MINUTES AND ACCOUNTING RECORDS. The minutes of proceedings
of the shareholders, Board of Directors, and Committees of the Board, and the
accounting books and records shall be kept at the principal executive office
of the Corporation, or at such other place or places as designated by the
Board of Directors. The minutes shall be kept in written form, and the
accounting books and records shall be kept either in written form or in a
form capable of being converted into written form. The minutes and
accounting books and records shall be open to inspection during usual
business hours on the written demand of any shareholder or holder of a voting
trust certificate, for a purpose reasonably related to the holder's interests
in the Corporation. The inspection may be made in person or by an agent or
attorney, and includes the right to copy and make extracts.
ARTICLE VII
AMENDMENTS
----------
The Board of Directors is expressly empowered to adopt, amend or repeal
bylaws of the corporation, without the approval of the stockholders. Any
adoption, amendment or repeal of bylaws of the corporation by the Board of
Directors shall require the approval of a majority of the total number of
authorized directors (whether or not there exist any vacancies in previously
authorized directorships at the time any resolution providing for adoption,
amendment or repeal is presented to the Board). The stockholders shall also
have power to adopt, amend or repeal the bylaws of the corporation. In
addition to any vote of the holders of any class or series of stock of this
corporation required by law or by the Certificate of Incorporation, the
affirmative vote of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of the outstanding shares of Common Stock of the corporation shall
be required to adopt, amend or repeal any provision of the bylaws of the
corporation.
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CERTIFICATE OF SECRETARY
OF
SCOOP, INC.,
a Delaware corporation
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of Scoop, Inc., a
Delaware corporation; and
(2) That the foregoing bylaws, comprising fourteen (14) pages,
constitute the bylaws of said corporation as duly adopted by Unanimous
Written Consent of the Board of Directors of said corporation as of October
15, 1996.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 15th day of
October, 1996.
/s/ DANIEL L. PELEKOUDAS
---------------------------
Daniel L. Pelekoudas
Secretary
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