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EXHIBIT 3.2
CELLPOINT INC.
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AMENDED AND RESTATED BY-LAWS
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ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE. The registered office of the Corporation
shall be in the State of Nevada. The registered agent of the Corporation shall
be such agent within the State of Nevada as the Board of Directors of the
Corporation shall select.
Section 2. OTHER OFFICES. The Corporation may also have offices at such
other places both within and without the State of Nevada 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 1. MEETING PLACES. All annual meetings of the stockholders shall be
held at any place within or without the state of Nevada which may be designated
by the Board of Directors. Special meetings of the stockholders may be held at
such time and place within or without the State of Nevada as shall be sated in
the notice of meeting, or in a duly executed waiver thereof.
Section 2. ANNUAL MEETING. The annual meeting of the stockholders of the
Corporation for the election of directors and for the transaction of such other
business as may properly come before the meeting shall be held following the
close of each fiscal year of the Corporation on such date as may be fixed from
time to time by resolution of the Board of Directors.
Section 3. SPECIAL MEETING. Special meetings of the stockholders, for any
purpose or purposes, may be called at any time by the President of any other
executive officer of the Corporation, by the Board of Directors or any member
thereof, or by the holder or holders of more than ten percent (10%) of the
shares of stock of the Corporation issued and outstanding and entitled to vote
thereat. Such meetings shall be held at such time and at such place within or
without the State of Nevada as shall be specified in the notice of the meeting.
Section 4. NOTICE OF MEETINGS. Notice of the place, date and time of the
holding of each annual and special meeting of the stockholders and the purpose
or purposes thereof shall be in writing, signed by the President or
Vice-President, or the Secretary, or an Assistant Secretary, or by such other
person or persons as the Board of Directors shall designate, and shall be given
personally or by mail to each stockholder entitled to vote at such meeting,
either personally or by mail or other means of communicating, charges prepaid,
addressed to such stockholder at his address appearing on the books and records
of the Corporation or given by him to the Corporation for the purpose of notice.
If a stockholder gives no address, notice shall be deemed to have been given to
him, if sent to him by mail or other means to the place where the principal
office of the Corporation is situated, or if published at least once in some
newspaper of general circulation in the county in which said office is located.
All such notices shall be sent to each stockholder entitled thereto not less
than ten (10) nor more than sixty (60) days before the date of such meeting.
Unless the Board of Directors shall fix a new record date for an adjourned
meeting, notice of such adjourned meeting need not be given if the time and
place to which the meeting shall be adjourned are announced at the meeting at
which the adjournment is taken. At the adjourned meeting, the Corporation may
transact any business which might have been transacted at the original meeting.
If the adjournment is for more than thirty (30) days or, if after the
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adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 5. QUORUM. Except as otherwise required by law or the Articles of
Incorporation, at all meetings of the stockholders, the presence in person or by
proxy of the holders of a majority of the shares of stock of the Corporation
issued and outstanding and entitled to vote shall constitute a quorum for the
transaction of any business. In the absence of a quorum, the holders of a
majority of the shares of stock present in person or by proxy and entitled to
vote or, if no stockholder entitled to vote is present, then any officer of the
Corporation may adjourn the meeting from time to time. At any such adjourned
meeting at which a quorum may be present, any business may be transacted which
might have been transacted at the meeting as originally called.
Section 6. ORGANIZATION. At each meeting of the stockholders, the Chairman
of the Board, if any, or in his absence or inability to act, the President, or
in his absence or inability to act, any person chosen by a majority of those
stockholders present or represented, shall act as chairman of the meeting. The
Secretary, or, in his absence or inability to act, an Assistant Secretary or any
other officer appointed by the chairman of the meeting, shall act as secretary
of the meeting and keep the minutes thereof.
Section 7. ORDER OF BUSINESS. The order of business at all meetings of the
stockholders shall be as determined by the chairman of the meeting.
Section 8. VOTING. Except as otherwise provided by statute or the Articles
of Incorporation, each holder of record of shares of stock of the Corporation
having voting power shall be entitled at each meeting of the stockholders to one
vote for every share of such stock standing in his name on the record of
stockholders of the Corporation (a) on the date fixed by the Board of Directors
as the record date for the determination of the stockholders who shall be
entitled to notice of and to vote at such meeting; or (b) if such record date
shall not have been so fixed, then at the close of business on the day next
preceding the day on which notice thereof shall be given; or (c) if notice is
waived, at the close of business on the day next preceding the day on which the
meeting is held. Each stockholder entitled to vote at any meeting of
stockholders may authorize another person or persons to act for him by a proxy
signed by such stockholder or his attorney-in-fact. Any such proxy shall be
delivered to the secretary of such meeting at or prior to the time designated in
the order of business for so delivering such proxies. No proxy shall be valid
after the expiration of eleven months from the date thereof, unless the proxy
provides for a longer period, which in no case shall be longer than seven years.
Every proxy shall be revocable at the pleasure of the stockholder executing it,
except in those cases where an irrevocable proxy is permitted by law. Except as
otherwise required by law, the Articles of Incorporation or these By-Laws, any
corporate action to be taken by vote of the stockholders shall be authorized by
a majority of the total votes cast at a meeting of stockholders by the holders
of shares present in person or represented by proxy and entitled to vote on such
action.
Section 9. LIST OF STOCKHOLDERS. The officer who has charge of the stock
ledger 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 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 (10) 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.
Section 10. INSPECTORS. The Board of Directors may, in advance of any
meeting of stockholders, appoint one or more inspectors to act at such meeting
or any adjournment thereof. If inspectors shall
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not be so appointed or if any of them shall fail to appear or act, the chairman
of the meeting may, and on the request of any stockholder entitled to vote
thereat shall, appoint one or more inspectors. 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 shall determine the number
of shares outstanding, the number of shares represented 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 chairman of the meeting or any stockholder entitled to vote thereat, the
inspectors shall make a report in writing of any challenge, request or matter
determined by them and shall execute a certificate of any fact found by them. No
director or candidate for the office of director shall act as inspector of an
election of directors. Inspectors need not be stockholders.
Section 11. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Unless otherwise
provided by the Articles of Incorporation or any by-law, any action, which is
required or permitted to be taken at any meeting of stockholders may be taken
without a meeting, without prior notice and without a vote, if a written consent
setting forth the action so taken is signed by the holders of record of
outstanding shares 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. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
Section 12. NOTICE OF STOCKHOLDER BUSINESS. At an annual meeting of
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting,
business must be (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (b) otherwise
properly brought before the meeting by or at the direction of the Board of
Directors or by the Chairman of the Board or the President of the Corporation or
(c) otherwise properly brought before the meeting by a stockholder. For business
to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof (as determined by the Board of
Directors) in writing to the Secretary of the Corporation. As used in this
Section 12 of these By-Laws, the phrase "notice or prior public disclosure of
the date of the meeting" shall mean notice or prior public disclosure of the
date on which the meeting is originally scheduled to be called to order and
shall not refer to notice or prior public disclosure of any date to which such
meeting may be adjourned. A stockholder's notice to the Secretary shall set
forth, as to each matter the stockholder proposes to bring before the annual
meeting, (a) a brief description of the business desired to be brought before
the annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the Corporation's stock
transfer books, of the stockholder proposing such business, (c) the class and
number of shares of capital stock of the Corporation which are beneficially
owned (such term being used in this Section 12 of these By-Laws with the meaning
ascribed to such term in Rule 13d-3 of the rules under the Securities Exchange
Act of 1934, as amended, as such Rule was in effect on July 1, 1990) by the
stockholder and (d) any material interest of the stockholder in such business.
Notwithstanding any other provision of these By-Laws, no business shall be
conducted at an annual meeting except in accordance with the procedures set
forth in this Section 12. If the presiding officer of an annual meeting
determines and declares that business was not properly brought before the
meeting in accordance with this Section 12, any such business shall not be
transacted.
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ARTICLE III
BOARD OF DIRECTORS
Section 1. GENERAL POWERS. The property, business and affairs of the
Corporation shall be managed by the Board of Directors. The Board of Directors
may exercise all such authority and powers of the Corporation and do all such
lawful acts and things as are not by statute or the Articles of Incorporation or
these By-Laws directed or required to be exercised or done by the stockholders.
Section 2. NUMBER, TERM OF OFFICE, QUALIFICATIONS AND ELECTION. The number
of directors of the Corporation shall be not less than one nor more than nine,
and within such range the number of directors at any time shall be determined by
resolution of the Board of Directors or the stockholders. At each annual meeting
of stockholders, directors elected to succeed the directors whose terms expire
at such annual meeting shall be elected to hold office for a term expiring at
the next annual meeting. Each director elected shall hold office until his
successor is elected and qualified. Directors need not be stockholders. Except
as otherwise required by statute or the Articles of Incorporation or these
By-Laws, directors to be elected at each annual meeting of stockholders shall be
elected by a plurality of the votes cast at the meeting by the holders of shares
present in person or represented by proxy and entitled to vote for the election
of directors.
Section 3. ANNUAL MEETING. The Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of other
business, as soon as practicable after each annual meeting of the stockholders,
on the same day and at the same place where such annual meeting shall be held or
at such other time and place as the Board of Directors shall determine. Notice
of such meeting need not be given. Such meeting may be held at any other time or
place (within or without the State of Nevada) which shall be specified in a
notice thereof given as hereinafter provided in Section 6 of this Article III,
or in a waiver of notice thereof.
Section 4. REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held at such times and places within or without the State of Nevada as
the Board of Directors may from time to time determine. If any day fixed for a
regular meeting shall be a legal holiday at the place where the meeting is to be
held, then the meeting which would otherwise be held on that day shall be held
at the same hour on the next succeeding business day. Notice of regular meetings
of the Board of Directors need not be given except as otherwise required by
statute or these By-Laws.
Section 5. SPECIAL MEETINGS. Special meetings of the Board of Directors may
be called at any time by the Chairman of the Board, if any, President, or, if he
is absent or unable or refuses to act, by any Vice President or by any three
directors of the Corporation and shall be held at such time and at such place
within or without the State of Nevada as shall be specified in the notice of
meeting or waiver thereof.
Section 6. NOTICE OF MEETINGS. Notice of each special meeting of the Board
of Directors (and of each regular meeting for which notice shall be required)
shall be given by the Secretary as hereinafter provided in this Section 6, in
which notice shall be stated the time and place of the meeting. Notice of each
such meeting shall be delivered to each director, either personally or by
telephone, telegraph, facsimile transmission, E-mail, or wireless, at least
twenty-four (24) hours before the time at which such meeting is to be held, or
shall be mailed or sent by courier to each director, addressed to him at his
residence, or usual place of business, so as to be received at least two days
before the day on which such meeting is to be held. Notice of any such meeting
need not be given to any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such meeting without
objecting, at the beginning of such meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Except as otherwise
specifically required by these By-Laws, a notice or waiver of notice of any
regular or special meeting of the Board of Directors need not state the purpose
or purposes of such meeting.
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Section 7. NOTICE OF ADJOURNMENT. Notice of the time and place of holding
an adjourned meeting need not be given to absent directors, if the time and
place be fixed at the meeting adjourned.
Section 8. ENTRY OF NOTICE. Whenever any director has been absent from any
special meeting of the board of directors, an entry in the minutes to the effect
that notice has been duly given shall be conclusive and incontrovertible
evidence that due notice of such special meeting was given to such director, as
required by law and these By-Laws.
Section 9. WAIVER OF NOTICE. The transactions of any meeting of the Board
of Directors, however called and noticed or wherever held, shall be as valid as
though a meeting had been duly held after regular call and notice, if a quorum
be present, and if, either before or after the meeting, each of the directors
not present sign a written waiver of notice or a consent to the holding of such
meeting or an approval of the minutes thereof. All such waivers, consent or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
Section 10. QUORUM AND MANNER OF ACTING. A majority of the number of
directors constituting the entire Board of Directors shall be present at any
meeting of the Board of Directors in order to constitute a quorum for the
transaction of business at such meeting, and, except as otherwise expressly
required by statute or the Articles of Incorporation, the act of a majority of
the directors present at any meeting at which a quorum is present shall be the
act of the Board of Directors. In the absence of a quorum at any meeting of the
Board of Directors, a majority of the directors present, or if no director is
present, the Secretary, may adjourn such meeting to another time and place, or
such meeting, unless it be the annual meeting of the Board of Directors, need
not be held. At any adjourned meeting at which a quorum is present, any business
may be transacted which might have been transacted at the meeting as originally
called. Except as provided in Section 14 of this Article III and Article IV of
these By-Laws and as otherwise specifically authorized by resolution of the
Board of Directors, the directors shall act only as a Board of Directors and the
individual directors shall have no power as such.
Section 11. ORGANIZATION. At each meeting of the Board of Directors, the
Chairman of the Board, if any, or, in his absence or inability to act, the
President, or, in his absence or inability to act, another director chosen by a
majority of the directors present, shall act as chairman of the meeting and
preside thereat. The minutes of the meeting shall be recorded by any officer of
the Corporation present and designated by such chairman.
Section 12. RESIGNATIONS. Any director of the Corporation may resign at any
time by giving written notice of his or her resignation to the Board of
Directors, the Chairman of the Board, if any, the President or the Secretary of
the Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time when it shall become effective shall not be specified
therein, immediately upon its receipt; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
Section 13. REMOVAL OF DIRECTORS. Except as otherwise provided in the
Articles of Incorporation, any director may be removed, at any time, with or
without cause, by the affirmative vote of the holders of two-thirds of the
outstanding shares of stock entitled to vote for the election of directors of
the Corporation at a meeting of the stockholders called and held for that
purpose.
Section 14. VACANCIES. Except as otherwise required by statute or by the
Articles of Incorporation, during the intervals between annual meetings of
stockholders, any vacancies and any newly created directorships resulting from
an increase in the authorized number of directors of the Corporation and
vacancies occurring in the Board of Directors for any reason shall be filled by
a majority vote of the directors then in office, whether or not a quorum, or by
a sole remaining director, at a meeting of the Board of Directors. Each director
chosen to fill a vacancy shall hold office for the unexpired term in respect of
which such vacancy occurred. Each director chosen to fill a newly created
directorship shall hold office for a term expiring at the next annual meeting.
Each director shall hold office for the
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specified term and until a successor shall be duly elected and qualified, except
in the event of death, resignation or removal. If there are no directors in
office, then a special meeting of stockholders for the election of directors may
be called and held in the manner provided by statute.
Section 15. COMPENSATION. Directors shall not receive any stated salary for
their services as directors, but by resolution of the board, a fixed fee, with
or without expenses of attendance may be allowed for attendance at each meeting.
Nothing herein contained shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Section 16. ACTION WITHOUT MEETING. Any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting if all members of the Board or committee, as the case
may be, consent thereto in writing by executing a unanimous consent of the Board
of Directors, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 17. PARTICIPATION IN MEETINGS BY TELEPHONE AND OTHER EQUIPMENT.
Members of the Board of Directors or of any committee thereof 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, and participation in a meeting pursuant to this
Section shall constitute presence in person at such meeting.
ARTICLE IV
EXECUTIVE AND OTHER COMMITTEES
Section 1. EXECUTIVE AND OTHER COMMITTEES. The Board of Directors may, by a
resolution passed by a majority of the whole Board of Directors, designate an
Executive Committee, to consist of two or more directors of the Corporation, and
one or more other committees, each such other committee to consist of two or
more of the directors of the Corporation. The Board of Directors may designate
one or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. In the absence or
disqualification of any member of the Executive Committee or such other
committee or committees, 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. The Executive
Committee, while the Board of Directors is not in session shall have and may
exercise, and any such other 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 Articles 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
By-Laws of the Corporation; and, unless the resolution or By-Laws expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock. Each committee shall keep
written minutes of its proceedings and shall report such minutes to the Board of
Directors when required. All such proceedings shall be subject to revision or
alteration by the Board of Directors; PROVIDED, HOWEVER, that rights of third
parties shall not be prejudiced by such revision or alteration. The Board of
Directors, by action of a majority of the entire Board, may at any time fill
vacancies in, change the membership of, or dissolve any such committee.
Section 2. EXECUTIVE COMMITTEE: GENERAL. Regular meetings of the Executive
Committee shall be held at such times and places, within or without the State of
Nevada, as a majority of such Committee may from time to time by resolution
determine. Special meetings of the Executive Committee may be
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called at the request of any member thereof and may be held at such times and
places, within or without the State of Nevada, as such Committee may from time
to time by resolution determine or as shall be specified in the respective
notices or waivers of notice thereof. Notice of regular meetings of such
Committee need not be given except as otherwise required by statute or these
By-Laws. Notice of each special meeting of such Committee shall be given to each
member of such Committee in the manner provided for in Section 6 of Article III
of these By-Laws. Subject to the provisions of this Article IV, the Executive
Committee, by resolution of a majority of such Committee, shall fix its own
rules of procedure. A majority of the Executive Committee shall be present in
person at any meeting of the Executive Committee in order to constitute a quorum
for the transaction of business at such meeting, and the act of a majority of
those present at any meeting at which a quorum is present shall be the act of
the Executive Committee. The members of the Executive Committee shall act only
as a committee, and the individual members shall have no power as such.
Section 3. OTHER COMMITTEES: GENERAL. A majority of any committee may fix
its rules of procedure, determine its action, and fix the time and place, within
or without the State of Nevada, of its meetings, unless the Board of Directors
shall otherwise by resolution provide. Notice of such meetings shall be given to
each member of the committee in the manner provided for in Section 6 of
Article III of these By-Laws. Nothing in this Article IV shall be deemed to
prevent the Board of Directors from appointing one or more committees consisting
in whole or in part of persons who are not directors of the Corporation;
PROVIDED, HOWEVER, that no such committee shall have or may exercise any
authority of the Board of Directors unless any action taken thereby is approved
by a majority of the members thereof, each member of which is a member of the
Board of Directors.
ARTICLE V
OFFICERS
Section 1. NUMBER AND QUALIFICATIONS. The officers of the Corporation shall
be a President, a Vice President, a Secretary and a Treasurer. Any two or more
offices may be held by the same person. Such officers shall be elected from time
to time by the Board of Directors, each to hold office until the meeting of the
Board following the next annual meeting of the stockholders, or until his
successor shall have been duly elected and shall have qualified, or until his
death, or until he shall have resigned or until he shall have been removed, as
hereinafter provided in these By-Laws. The Board of Directors may from time to
time elect such other officers (including a Chairman of the Board and one or
more Vice Presidents, Assistant Treasurers and Assistant Secretaries) and such
other officers and agents as it may deem necessary or desirable for the business
of the Corporation. The Board of Directors may from time to time authorize any
principal officer or committee to appoint, and to prescribe the authority and
duties of, any such subordinate officers or agents. Each of such other officers
and agents shall have such authority, perform such duties, and hold office for
such period, as are provided in these By-Laws or as may be prescribed by the
Board of Directors or by the principal officer or committee appointing such
officer or agent.
Section 2. RESIGNATIONS. Any officer of the Corporation may resign at any
time by giving written notice of his or her resignation to the Board of
Directors, the Chairman of the Board, if any, the President or the Secretary.
Any such resignation shall take effect at the time specified therein, subject to
such officer's employment contract, if any, or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 3. REMOVAL. Any officer or agent of the Corporation may be removed,
either with or without cause, at any time, by the vote of the majority of the
entire Board of Directors at any meeting of the Board, or, except in the case of
an officer or agent elected or appointed by the Board, by any principal officer
or committee upon whom such power of removal may be conferred by the Board.
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Section 4. VACANCIES. A vacancy in any office, whether arising from death,
resignation, disqualification, removal or any other cause, may be filled for the
unexpired portion of the term of the office which shall be vacant, in the manner
prescribed in these By-Laws for the regular election or appointment to such
office.
Section 5. THE CHAIRMAN OF THE BOARD. The Chairman of the Board, if
elected, shall, if present, preside at all meetings of the stockholders and
Board of Directors and, in general, shall have such other powers and perform
such other duties as usually pertain to the office of the Chairman of the Board
or as from time to time may be assigned to him by the Board of Directors. At the
discretion of the Board of Directors, the Chairman of the Board, if elected, may
be the chief executive officer of the Corporation and, if so appointed by the
Board of Directors, shall have general and active supervision and direction over
the business and affairs of the Corporation and over its officers, subject,
however, to the control of the Board of Directors.
Section 6. THE PRESIDENT. The President shall be the chief executive
officer of the Corporation and shall have general and active supervision and
direction over the business and affairs of the Corporation and over its
officers, unless the Chairman of the Board, if any, is appointed to serve as
chief executive officer, in which case the President shall be the chief
operating officer of the Corporation and shall have general and active
supervision and direction over the ordinary business operations and affairs of
the Corporation and over its officers, subject, however, to the supervision and
direction of the Chairman of the Board, if any, who is also the chief executive
officer of the Corporation, and to the control of the Board of Directors. He
shall, if present, in the absence of or inability of the Chairman of the Board,
preside at meetings of the stockholders and at meetings of the Board of
Directors. In general, the President shall have such other powers and perform
such other duties as usually pertain to the office of the President and chief
executive officer or chief operating officer, as the case may be, or as from
time to time may be assigned to him by the Board of Directors or the Chairman of
the Board, if any.
Section 7. VICE PRESIDENTS. Each Vice President shall have such powers and
perform such duties as usually pertain to his office or as from time to time may
be assigned to him by the Board of Directors, the Chairman of the Board, if any,
or the President. If there is more than one Vice President, they shall be ranked
in an order designated by the Board of Directors or failing such designation,
the Vice Presidents will be deemed to be ranked by the Board of Directors on the
order of their election as set forth in the resolution or resolutions of the
Board of Directors providing for their election. During the absence of the
President or his inability to act, the Vice President, or, if there is more than
one Vice President, the highest ranking Vice President designated or deemed
designated by the Board of Directors, shall exercise the powers and perform the
duties of the President, subject to the direction of the Board of Directors or
the Chairman of the Board, if any.
Section 8. TREASURER. The Treasurer shall:
(a) have charge and custody of, and be responsible for, all the funds and
securities of the Corporation;
(b) keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and have control of all books of account of
the Corporation;
(c) cause all moneys and other valuables to be deposited to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors;
(d) receive, and give receipts for, moneys due and payable to the
Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the investment of
its funds as ordered or authorized by the Board of Directors, taking
proper vouchers therefor;
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(f) render to the Chairman of the Board, if any, the President, the Board of
Directors or any committee thereof, whenever required, an account of the
financial condition of the Corporation and of his transactions as
Treasurer; and
(g) in general, have such other powers and perform such other duties as
usually pertain to the office of Treasurer or as from time to time may be
assigned to him by the Board of Directors, the Chairman of the Board, if
any, or the President.
Section 9. ASSISTANT TREASURERS. At the request of the Treasurer or in the
case of his absence or inability to act, the Assistant Treasurer, or if there be
more than one, the Assistant Treasurer designated by the Board of Directors or,
in the absence of such designation, by the Chairman of the Board, if any, or the
President, shall perform all the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the
Treasurer. In general, each Assistant Treasurer shall have such other powers and
perform such other duties as from time to time may be assigned to him by the
Board of Directors, the Chairman of the Board, if any, the President or the
Treasurer.
Section 10. THE SECRETARY. The Secretary shall:
(a) keep or cause to be kept, in one or more books provided for the purpose,
the minutes of all meetings of the Board of Directors, of the committees
of the Board of Directors and of the stockholders;
(b) see that all notices are duly given in accordance with the provisions of
these By-Laws and as required by law;
(c) be custodian of the records and the seal of the Corporation and affix
and attest the seal to all stock certificates of the Corporation (unless
the seal of the Corporation on such certificates shall be a facsimile, as
hereinafter provided) and affix and attest the seal to all other
documents to be executed on behalf of the Corporation under its seal;
(d) see that the books, reports, statements, certificates and other
documents and records required by law to be kept and filed are properly
kept and filed; and
(e) in general, have such other powers and perform such other duties as
usually pertain to the office of Secretary or as from time to time may be
assigned to him by the Board of Directors, the Chairman of the Board, if
any, or the President.
Section 11. ASSISTANT SECRETARIES. At the request of the Secretary or in
case of his absence or inability to act, the Assistant Secretary, or if there be
more than one, the Assistant Secretary designated by the Board of Directors or,
in the absence of such designation, by the Chairman of the Board, if any, or the
President shall perform all the duties of the Secretary, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the
Secretary. In general, each Assistant Secretary shall have such other powers and
perform such other duties as from time to time may be assigned to him by the
Board of Directors, the Chairman of the Board, if any, the President or the
Secretary.
Section 12. OTHER OFFICERS. Each other officer of the Corporation shall
exercise the powers and perform the duties incident to his office, subject to
the direction of the Board of Directors and the Executive Committee, if any.
Section 13. OFFICERS' BONDS OR OTHER SECURITY. If required by the Board of
Directors, any officer of the Corporation shall give a bond for the faithful
performance of his duties, for such term and in such amount and with such surety
or sureties as the Board may require.
Section 14. COMPENSATION. The compensation of the officers of the
Corporation for their services as such officers shall be fixed from time to time
by the Board of Directors or a committee of the Board
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designated by it, and no officer of the Corporation shall be prevented from
receiving compensation by reason of the fact that he is also a director of the
Corporation.
ARTICLE VI
CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
Section 1. CHECKS, DRAFTS, ETC. All checks, drafts, bills of exchange or
other orders for the payment of money out of the funds of the Corporation, and
all notes or other evidences of indebtedness of the Corporation shall be signed
in the name and on behalf of the Corporation by such person or persons and in
such manner as shall from time to time be authorized by the Board of Directors.
Section 2. DEPOSITS. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositories as the Board of Directors or the
Chairman of the Board may from time to time designate or as may be designated by
any officer or officers of the Corporation to whom such power of designation may
from time to time be delegated by the Board of Directors or the Chairman of the
Board. For the purpose of deposit and for the purpose of collection for the
account of the Corporation, checks, drafts and other orders for the payment of
money which are payable to the order of the Corporation may be endorsed,
assigned and delivered by any officer or agent of the Corporation.
Section 3. GENERAL AND SPECIAL BANK ACCOUNTS. The Board of Directors or the
Chairman of the Board may from time to time authorize the opening and keeping of
general and special bank accounts with such banks, trust companies or other
depositories as the Board may designate or as may be designated by any officer
or officers of the Corporation to whom such power of designation may from time
to time be delegated by the Board of Directors or the Chairman of the Board. The
Board of Directors may make such special rules and regulations with respect to
such bank accounts, not inconsistent with provisions of these By-Laws, as it may
deem expedient.
Section 4. PROXIES IN RESPECT OF SECURITIES OF OTHER CORPORATIONS. Unless
otherwise provided by resolution adopted by the Board of Directors, the Chairman
of the Board, if any, the President or any Vice President and the Secretary or
Assistant Secretary may from time to time appoint an attorney or attorneys or
agent or agents of the Corporation in the name and on behalf of the Corporation
to cast the votes which the Corporation may be entitled to cast as the holder of
stock or other securities in any other corporation any of whose stock or other
securities may be held by the Corporation, at meetings of the holders of the
stock or other securities of such other corporation, or to consent in writing in
the name of the Corporation as such holder to any action by such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause to
be executed in the name of or on behalf of the Corporation and under its
corporate seal, or otherwise, all such written proxies or other instruments as
he may deem necessary or proper in the premises.
ARTICLE VII
SHARES AND THEIR TRANSFER; EXAMINATION OF BOOKS
Section 1. STOCK CERTIFICATES. Every holder of stock of the Corporation
shall be entitled to have a certificate, in such form as shall be approved by
the Board of Directors, certifying the number and class of shares of stock of
the Corporation owned by him. The certificates representing shares of the
respective classes of stock shall be numbered in order of their issue and shall
be signed in the name of the Corporation by the President or a Vice President
and by the Secretary or an Assistant Secretary and sealed with the seal of the
Corporation (which seal may be a facsimile, engraved or printed). Any or all the
signatures on the certificate may be a facsimile. Every certificate
authenticated by a facsimile of a signature must be countersigned by a transfer
agent or transfer clerk. In case any officer, transfer
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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. BOOKS OF ACCOUNT AND RECORD OF STOCKHOLDERS. The books and
records of the Corporation may be kept at such places, within or without the
State of Nevada, as the Board of Directors may from time to time determine. The
stock record books and the blank stock certificate books shall be kept by the
Secretary or by any other officer or agent designated by the Board of Directors.
Section 3. TRANSFERS OF SHARES. Transfers of shares of stock of the
Corporation shall be made on the stock records of the Corporation only upon
authorization by the registered holder thereof, or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary or
with a transfer agent or transfer clerk, and on surrender of the certificate or
certificates for such shares properly endorsed or accompanied by a duly executed
stock transfer power and the payment of all taxes thereon. Except as otherwise
provided by law, the Corporation shall be entitled to recognize the exclusive
right of a person in whose name any share or shares stand on the record of
stockholders as the owner of such share or shares for all purposes, including,
without limitation, the rights to receive dividends or other distributions, and
to vote as such owner, and the Corporation may hold any such stockholder of
record liable for calls and assessments and the Corporation shall not be bound
to recognize any equitable or legal claim to or interest in any such share or
shares on the part of any other person whether or not it shall have express or
other notice thereof. Whenever any transfers of shares shall be made for
collateral security and not absolutely, and both the transferor and transferee
request the Corporation to do so, such fact shall be stated in the entry of the
transfer.
Section 4. REGULATIONS. The Board of Directors may make such additional
rules and regulations, not inconsistent with these By-Laws, as it may deem
expedient concerning the issue, transfer and registration of certificates for
shares of stock of the Corporation. It may appoint, or authorize any officer or
officers to appoint, one or more transfer agents or one or more transfer clerks
and one or more registrars and may require all certificates for shares of stock
to bear the signature or signatures of any of them.
Section 5. LOST, DESTROYED OR MUTILATED CERTIFICATES. The holder of any
certificate representing shares of stock of the Corporation shall immediately
notify the Corporation of any loss, destruction or mutilation of such
certificate, and the Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it which the owner thereof shall
allege to have been lost, stolen or destroyed or which shall have been
mutilated, and the Board of Directors may, in its discretion, require such owner
or his legal representatives to give the Corporation and/or any agent of the
Corporation designated by it a bond in such sum, limited or unlimited, and in
such form and with such surety or sureties as the Board of Directors in its
absolute discretion shall determine, to indemnify the Corporation and/or such
agent against any claim that may be made against it on account of the alleged
loss, theft or destruction of any such certificate, or the issuance of a new
certificate. Anything herein to the contrary notwithstanding, the Board of
Directors, in its absolute discretion, may refuse to issue any such new
certificate, except pursuant to legal proceedings under the laws of the State of
Nevada.
Section 6. STOCKHOLDER'S RIGHT OF INSPECTION. Subject to the limitations
set forth in the applicable provisions of the Nevada Revised Statutes, any
stockholder of record, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right during the
usual hours for business to inspect for any proper purpose the Corporation's
stock ledger, a list of its stockholders, and its other books and records, and
to make copies or extracts therefrom. A proper purpose shall mean a purpose
reasonably related to such person's interest as a stockholder. In every instance
where an attorney or other agent shall be the person who seeks the right to
inspection, the
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demand under oath shall be accompanied by a power of attorney or such other
writing which authorizes the attorney or other agent to so act on behalf of the
stockholder. The demand under oath shall be directed to the Corporation at its
registered office in the State of Nevada or at its principal place of business.
Section 7. FIXING OF RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such 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.
ARTICLE VIII
DIVIDENDS
Subject to the provisions of applicable law or of the Articles of
Incorporation relating thereto, if any, dividends upon the capital stock of the
Corporation may be declared by the Board of Directors at any regular or special
meeting. Dividends may be paid in cash, in property or in shares of the capital
stock of the Corporation, subject to applicable law and the Articles of
Incorporation.
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 Board of
Directors from time to time, in its absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose or purposes as the Board of Directors shall determine to be in the
interest of the Corporation, and the Board of Directors may modify or abolish
any such reserve in the manner in which it was created.
ARTICLE IX
INDEMNIFICATION
Section 1. The Corporation shall indemnify, subject to the provisions of
Section 4 of this Article V, any person (each, an "Indemnitee") who was or is a
party to or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (each, a "Proceeding") (other than one brought by or in the right
of the Corporation) by reason of the fact that he is or was a director, an
officer, employee or agent of the Corporation or is or was serving at the
request of the Corporation as a director, an 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
Proceeding if Indemnitee acted (x) in good faith, and (y) in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation. The termination of any Proceeding (other than one brought by or in
the right of the Corporation) by judgment, order, settlement, conviction or upon
a plea of NOLO CONTENDERE or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not meet the standard of conduct described
above.
Section 2. The Corporation shall indemnify, subject to the provisions of
Section 4 of this Article V, any person who was or is a party to any proceeding
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
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expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
Proceeding if Indemnitee acted (x) in good faith, and (y) in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, except that no indemnification shall be made in respect of any
Proceeding as to which such person has been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable to the
Corporation or for amounts paid in settlement to the Corporation unless and only
to the extent that a court of competent jurisdiction determines upon application
that in the view of all the circumstances of the Proceeding the person is fairly
and reasonably entitled to indemnity for such expenses as the court deems
proper.
Section 3. To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
Proceeding referred to in Sections 1 and 2 of this Article IX, or in defense of
any claim, matter or issue therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
Section 4. Any indemnification under Sections 1 and 2 of this Article IX
(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 such Sections 1 and 2. Such
determination shall be made (a) by the stockholders, (b) by the Board of
Directors by a majority vote of a quorum consisting of directors who are not
parties to such proceeding, (c) if a majority vote of a quorum consisting of
directors who are not parties to such proceeding so orders, by independent legal
counsel in a written opinion, or (d) a quorum consisting of directors who are
not parties to such proceeding cannot be obtained, by independent legal counsel
in a written opinion.
Section 5. Expenses incurred by an officer or director in defending a civil
or criminal Proceeding shall be paid by the Corporation as they are incurred and
in advance of the final disposition of such Proceeding, upon the receipt by the
Corporation of a written undertaking by or on behalf of such person to repay
such amount if it is ultimately determined by a court of competent jurisdiction
that he is not entitled to indemnification by the Corporation. The provisions
contained in this Section 5 shall not affect the rights of the advancement of
expenses to which any person other than an officer or director of the
Corporation is entitled.
Section 6. The indemnification and advancement of expenses authorized in or
ordered by a court pursuant to this Article IX (a) shall not be deemed exclusive
of any other rights to which those seeking indemnification may be entitled under
any under the Articles of Incorporation, 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, except that
indemnification (unless order by the court) may not be made to or on behalf of
director or officer if a final adjudication is establishes that his acts or
omissions involved intentional misconduct, fraud or knowing violation of law or
the payment of dividends in violation of the revised Nevada Statutes, and
(b) 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.
Section 7. The Corporation may purchase and maintain insurance or make
"other financial arrangements" 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 and liability and expenses
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 Article IX; provided, that no
arrangement made pursuant to this Section 7, shall provide protection to a
person which has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable
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acts or omissions which involved intentional misconduct, fraud or knowing
violation of law or the payment of dividends in violation of the revised Nevada
Statutes, except with respect to advancement of expenses or indemnification
order by the court.
Section 8. For purposes of this Article IX, 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, employees or
agents, so that any person who is or was a director, officer, employee or agent
of such constituent corporation 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.
Section 9. For purposes of this Article IX, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the corporation"
shall include any 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 Article V.
Section 10. For purposes of this Article IX, references to "other financial
arrangements" shall include the creation of a trust fund, the establishment of a
program of self-insurance, the securing of its obligation of indemnification by
granting a security interest or other lien on any assets of the Corporation, and
the establishment of a letter of credit, guaranty or surety.
Section 11. SEVERABILITY. If any provision of this Article IX shall be held
invalid, illegal or unenforceable for any reason whatsoever: (i) the validity,
legality and enforceability of the remaining provisions of this Article IX
(including, without limitation, portions of any paragraph of this Article IX
containing any such provision held to be invalid, illegal or unenforceable, that
are not themselves invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby; and (ii) to the fullest extent possible, the
provisions of this Article IX (including, without limitation, portions of any
paragraph of this Article IX containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid.
ARTICLE X
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by resolution of the Board
of Directors.
ARTICLE XI
SEAL
The Board of Directors shall provide a corporate seal, which shall be
circular in form and bear the name of the Corporation and the words and figures
denoting its organization under the laws of the State of Nevada and the year
thereof.
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ARTICLE XII
AMENDMENT
The Board of Directors is authorized to adopt, alter, amend or repeal the
By-Laws of the Corporation, but any By-Laws adopted, altered, amended or
repealed by the Board of Directors may be altered, amended or repealed by the
stockholders of the Corporation.
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