Exhibit 3.2
AMENDED AND RESTATED
BYLAWS OF
ETRAVELSERVE.COM, INC.
ARTICLE I
OFFICES
SECTION 1.1. REGISTERED OFFICE AND REGISTERED AGENT. The registered office and
registered agent shall be designated in duly adopted actions of the Board of
Directors. Each registered office and registered agent may be changed from time
to time by a duly adopted action of the Board of Directors, and the Corporation
shall file an appropriate statement of change of registered office or registered
agent promptly after the taking of such action in accordance with applicable
law.
SECTION 1.02. OTHER OFFICES. The Corporation may also have offices at such other
places within or without the state of incorporation of the Corporation as the
Board of Directors may from time to time determine or the business of the
Corporation requires.
ARTICLE II
SHAREHOLDERS
SECTION 2.01. PLACE OF MEETING. All meetings of the shareholders of the
Corporation shall be held at the principal executive office of the Corporation
unless otherwise determined by the Board of Directors and specified in the
notice of meeting, in which event the meeting shall be held at the place within
or without the state of incorporation as shall be designated in the notice of
such meeting.
SECTION 2.02. ANNUAL MEETING. The Board of Directors may fix the date and time
of the annual meeting of the shareholders, but if no such date and time is fixed
by the Board, the annual meeting shall be held on a third Tuesday in May, if not
a legal holiday, and if a legal holiday, then on next succeeding business day,
at 10:00 a.m. local time. At the annual meeting, the shareholders then entitled
to vote shall elect directors and shall transact such other business as may
properly be brought before the meeting.
SECTION 2.03. SPECIAL MEETINGS. Special meetings of the shareholders of the
Corporation may be called for any purpose for which meetings may lawfully be
called at any time by the Chairman of the Board, if one is elected, or by the
President or by a majority of the Board of Directors, and shall be called after
the Corporation's receipt of the request in writing of shareholders owning
one-fourth of the amount of the entire capital stock of the Corporation issued
and outstanding and entitled to vote. Every request for a special meeting shall
state the specific purpose or purposes of the meeting. The date of the meeting
shall be held at such date and time as the Chairman of the Board may fix, not
less than 10 nor more than 60 days after the receipt of the request, and the
Secretary shall give due notice thereof. If the Chairman of the Board shall
neglect
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or refuse to fix the time and date of such meeting and cause the Secretary to
give notice thereof, the person or persons calling the meeting may do so.
SECTION 2.04 Notice of Meetings. Written notice of the place, date and hour of
every meeting of the shareholders, whether annual or special, shall be given to
each shareholder of record entitled to vote at the meeting not less than 10 nor
more than 60 days before the date of the meeting. Every notice of a special
meeting shall state the purpose or purposes thereof.
SECTION 2.05 Quorum and Adjourned Meeting. The record holders of a majority of
the stock issued and outstanding (not including treasury stock) and entitled to
vote thereat, present in person or represented by proxy, shall constitute a
quorum at all meetings of the shareholders for the transaction of business,
except as otherwise provided by law, by the Corporation's Certificate of
Incorporation or by these Bylaws. If, however, such quorum shall not be present
or represented at any meeting of the shareholders, the shareholders entitled to
vote thereat, present in person or represented by proxy, any business may be
transacted which might have been transacted at the meeting as originally
notified. When a quorum is present at any meeting, the vote of the holders of
the majority of the stock having voting power present in person or represented
by proxy shall decide all questions brought before such meeting, unless the
question is one upon which, by expressed provision of applicable law, the
Corporation's Certificate of Incorporation or these Bylaws, a different vote is
require, in which case such expressed provision shall govern and control the
decision of such question. The shareholders present in person or represented by
proxy at a duly organized meeting at which a quorum is present may continue to
do business until adjournment, notwithstanding withdrawal of enough shareholders
to leave less than a quorum.
SECTION 2.06. Conduct of Meetings. All annual and special meetings of
shareholders shall be conducted in accordance with such rules and procedures as
the Board of Directors may determine subject to the requirements of applicable
law and, as to matters not governed by such rules and procedures, as the
chairman of such meetings shall determine. The chairman of any annual or special
meeting of shareholders shall be Chairman of the Board or in his absence, the
President of the Corporation. The Secretary, or in the absence of the Secretary,
a person designated by the chairman set all as secretary of then meeting.
SECTION 2.07. VOTING. At every meeting of the shareholders, each shareholder
shall be entitled to one vote in person or by proxy for each share of capital
stock having voting power held of record by such shareholder. No proxy shall be
voted more than three years after its date, unless the proxy specifically
provides for a longer period.
SECTION 2.08. CONSENT OF SHAREHOLDERS IN LIEU OF MEETING. Any action required
or permitted to be taken at any annual or special meeting of shareholders of the
Corporation may be taken without a meeting, without prior notice and without a
vote, if a consent in writing setting forth the action so taken shall be signed
by the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize the taking of such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of action by the shareholders without a meeting by
less than unanimous written consent shall
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be given to those shareholders entitled to vote on the action who did not
consent in writing to such action.
SECTION 2.09. VOTING LISTS. At least ten (10) days before every meeting of
shareholders, the Secretary shall cause the Corporation to prepare a complete
list of the shareholders entitled to vote at the meeting. The list shall be
arranged in alphabetical order showing the address of each shareholder and the
number of shares registered in the name of each shareholder. Such list shall be
open to the examination of any shareholder for any lawful purpose during
ordinary business hours for a period of at least ten (10) days prior to the
meeting either at the principal executive office of the Corporation or at the
place where the meeting is to be held. The list shall also be available and open
for inspection during the whole time of the meeting and may be inspected by any
shareholder or authorized representative who is present.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01. POWERS. The Board of Directors shall have full power to manage the
business and affairs of the Corporation; and all powers of the Corporation,
except those specifically reserved to the shareholders by law, the Certificate
of Incorporation or these Bylaws, are hereby granted to and vested in the Board
of Directors.
SECTION 3.02. NUMBER, QUALIFICATIONS AND TERM OF OFFICE. The Board of Directors
shall consist of such number of directors as may be determined from time to time
by resolution of the Board of Directors; provided that the Board shall consist
of not less than one (1) nor more than Seven (7) persons. No director need be an
officer or shareholder of the Corporation but each director shall be a natural
person 21 years of age or older. Each Director shall serve until the next annual
meeting of the shareholders or until his successor shall have been duly elected
and qualified except in the event of his death, resignation or removal.
SECTION 3.03. VACANCIES. Any director may be removed, either for or without
cause, at any meeting of shareholders by the affirmative vote of a majority in
number of shares of the shareholders present in person or by proxy at such
meeting and entitled to vote for the election of such director, provided notice
of the intention to act upon such matter shall have been given in the notice
calling such meeting. Vacancies and newly created directorships resulting from
any increase in the authorized number of Directors may be filled by a majority
of the Directors then in office, though less than a quorum, or by a sole
remaining Director, and any Director so chosen shall hold office until the next
annual election or until his successor is duly elected and qualified. If there
are no Directors in office, then an election of Directors may be held in the
manner provided by law. If, at the time of filing any vacancy or any newly
created directorship, the Directors then in office shall constitute less than a
majority of the whole Board (as constituted immediately prior to any such
increase), a court of competent jurisdiction may, upon application of
shareholders holding of record at least 10 percent of the total number of the
shares at the time outstanding having the right to vote for such Directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships or to replace the Directors chosen by the Directors then
in office.
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SECTION 3.04. RESIGNATIONS. Any Director of the Corporation may resign at any
time by giving written notice to the Board of Directors, Chairman of the Board,
President or the Secretary of the Corporation. Such resignation shall take
effect upon receipt by the Corporation of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such registration shall not be necessary to make it effective.
SECTION 3.05. ORGANIZATION. At every meeting of the Board of Directors, the
Chairman of the Board, if there be one, or, in the case of a vacancy in the
office or absence of the Chairman of the Board, the Director chosen by a
majority of the Directors present, shall preside, and the Secretary, or, in his
absence, the person appointed by the chairman of the meeting, shall act as
secretary of the meeting.
SECTION 3.06. PLACE OF MEETING. The Board of Directors may hold its meetings,
both regular and special, at such place or places within or without the state of
incorporation as the Board of Directors may from time to time select, as
designated in the notice calling the meeting.
SECTION 3.07. ORGANIZATIONAL MEETING. The first meeting of each newly elected
Board of Directors shall be held without notice immediately following the annual
meeting of shareholders, unless the shareholders shall determine otherwise.
SECTION 3.08. REGULAR MEETINGS. Regular meetings of the Board of Directors may
be held without notice at such time and place as shall be designated from time
to time by a duly adopted action of the Board of Directors.
SECTION 3.09. SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held whenever called by the Chairman of the Board or by two or more of the
Directors. Notice of each special meeting shall be given to each director by
telephone, telegram, telecopy, in writing or in person at least 24 hours (in the
case of notice by telephone, in person or actual notice however received) or 48
hours (in the case of notice by telegram, or telecopy or similar wire
communication) or five (5) days (in the case of notice by mail or otherwise)
before the time at which the meeting is to be held. Each such notice shall state
the date, time and place of the meeting to be so held.
SECTION 3.10. QUORUM AND ADJOURNED MEETINGS. At all meetings of the Board, a
majority of the Directors shall constitute a quorum for the transaction of
business; and the act 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 law or by the Certificate of
Incorporation. If a quorum shall not be present at any meeting of the Board of
Directors, a majority of the Directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
SECTION 3.11. UNANIMOUS CONSENT OF DIRECTORS IN LIEU OF MEETING. Unless
otherwise restricted by law, 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, without
prior notice and without a vote if all members of the Board or the Committee, as
the case may be, consent thereto in writing either before or after the taking of
action
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with respect thereto. The written consent shall be filed with the minutes of
proceedings of the Board or the Committees.
SECTION 3.12. EXECUTIVE AND OTHER COMMITTEES. The Board of Directors may, by
resolution adopted by a majority of the whole Board, designate an Executive
Committee and one or more other committees, each committee to consist of one or
more Directors. Any such Committee to the extent provided in the resolution
establishing such Committee and not otherwise restricted or limited by
applicable law or the Certificate of Incorporation or the Bylaws, shall have and
may exercise all the power and authority of the Board of Directors in the
management of the business and affairs of the Corporation, including the power
or authority to declare a dividend, to authorize the issuance of stock, to adopt
a certificate of ownership and merger and to 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 (1) amending the
Certificate of Incorporation (except that a Committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of the stock adopted by the Board of Directors, as permitted by applicable law,
fix any of the preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the Corporation or the
conversion into, or the exchange of such shares for, shares of any other class
or classes or any other series of the same or any other class or classes of
stock of the Corporation), (2) adopting an agreement of merger or consolidation,
(3) recommending to the shareholders the sale, lease or exchange, of all or
substantially all of the Corporation's property and assets, (4) recommending to
the shareholders the dissolution of the Corporation or a revocation of a
dissolution, or (5) amending the Bylaws of the Corporation. Such Committee or
Committees shall have such name or names as may be determined from time to time
by resolution adopted by the Board of Directors. Each Committee shall keep
regular minutes of its meetings and file the same with the minutes of the Board
of Directors.
SECTION 3.13. COMPENSATION OF DIRECTORS. Unless otherwise restricted by law, the
Certificate of Incorporation or these Bylaws, the Board of Directors shall have
the authority to fix the compensation of Directors. The Directors shall be
reimbursed their actual reasonable expenses, if any, of attendance at any
meeting of the Board of Directors and any Committee thereof and may be paid a
fixed sum for attendance at each such meeting or a fixed salary as determined by
the Board of Directors. No such payment shall preclude any Director from serving
the Corporation in any other capacity and receiving compensation therefor.
ARTICLE IV
NOTICE OF MEETINGS
SECTION 4.01. NOTICE. Whenever notice is required to be given to any Director or
shareholder, it shall not be construed to mean personal notice, but such notice
may be given in writing, by mail, addressed to such Director or shareholder, 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 shareholders
may also be given in accordance with Section 2.04 of Article II hereof, and
notice to Directors may also be given in accordance with Section 3.09 of Article
III hereof.
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SECTION 4.02. WAIVER OF NOTICE. Whenever any notice is required to be given, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Except in the case of a special meeting
of shareholders and ad otherwise required by law, neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
shareholders, Directors, or Committee of Directors need be specified in any
written waiver of notice of such meeting.
SECTION 4.03. CONFERENCE TELEPHONE MEETINGS. One or more shareholders, Directors
or members of a Committee of Directors may participate in a meeting of the
shareholders, the Board, or of a Committee of the Board, by means of conference
telephone or similar communications equipment provided that all persons
participating in the meeting can hear each other and participate in discussions
thereof. Participation in a meeting pursuant to this section shall constitute
presence in person at such meeting.
ARTICLE V
OFFICERS
SECTION 5.01 NUMBER, QUALIFICATIONS AND DESIGNATION. The officers of the
Corporation shall be chosen by the Board of Directors and shall be a Chairman of
the Board, President, one or more Vice Presidents, a Secretary, a Treasurer, and
such other officers as may be elected in accordance with the provisions of
Section 5.03 of this Article. One person may hold more than one office. Officers
may be, but need not be, Directors or shareholders of the Corporation. The Board
of Directors may from time to time elect such other officers as it deems
necessary or appropriate, who shall exercise such powers and perform such duties
as are provided in these Bylaws and as the Board of Directors may from time to
time determine.
SECTION 5.02 ELECTION, TERM OF OFFICE AND RESIGNATION. The officers of the
Corporation shall be elected annually by the Board of Directors, and each such
officer shall hold his office until his successor shall have been elected and
qualified, or until his earlier death, resignation, or removal. Any officer may
resign at any time upon written notice to the Corporation. Such resignation
shall take effect upon receipt by the Corporation of such notice.
SECTION 5.03 REMOVAL OF OFFICERS. Any officer or agent elected or appointed by
the Board of Directors may be removed at any time, with or without cause, by the
affirmative vote of a majority of the whole Board of Directors. If any office
becomes vacant for any reason, the vacancy may be filled by the Board of
Directors.
SECTION 5.04 CHAIRMAN OF THE BOARD. The Chairman of the Board of Directors shall
be the Chief Executive Officer of the Corporation. He shall preside at all
meetings of the shareholders and the Board of Directors and shall assist the
Board of Directors in the formulation of policies to be pursued by the executive
management of the Corporation. It shall be his responsibility to see that the
policies established by the Board of Directors are carried into effect. He may
sign and deliver on behalf of the Corporation any deeds, mortgages, bonds,
contracts, powers of attorney, or other instruments which the Board of Directors
has authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these
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Bylaws to some other officer or agent of the Corporation; and he shall perform
all duties incident to the office of Chief Executive Officer of the Corporation
and such other duties as may be prescribed by the Board of Directors from time
to time.
SECTION 5.05 PRESIDENT. The President shall be the Chief Operating Officer of
the Corporation, shall report to the Chairman of the Board, and shall have
general supervisory responsibility over all operations of the Corporation,
subject to the control of the Board of Directors. In the absence or incapacity
of the Chairman of the Board, the President shall perform all the duties of the
Chairman of the Board. He shall execute and deliver, in the name of the
Corporation, deeds, mortgages, bonds, contracts or other instruments, authorized
by the Board of Directors, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these
Bylaws to some other officer or agent of the Corporation; and, in general,
subject to supervision by the Chairman of the Board, the President shall perform
all duties incident to the office of Chief Operating Officer of the Corporation,
and such other duties as from time to time may be assigned to him by the
Chairman of the Board or the Board of Directors.
SECTION 5.06 VICE PRESIDENTS. The Vice Presidents, in the order of the
designation by the Board of Directors, shall perform the duties of the President
in his absence and such other duties as may from time to time be assigned to
them by the Board of Directors, the Chairman of the Board or by the President.
SECTION 5.07 SECRETARY. The Secretary shall attend all meetings of the
shareholders, the Board of Directors and Committees thereof, shall record the
minutes of the proceedings thereat and shall keep a current and complete record
thereof. The Secretary shall publish, keep and maintain records and reports of
the Corporation as required by law; shall be the custodian of the seal of the
Corporation and see that it is affixed to all documents to be executed on behalf
of the Corporation under its seal; and, in general, shall perform all duties
incident to the office of Secretary and such other duties as may from time to
time be assigned to him by the Board of Directors, the Chairman of the Board or
the President. Each Assistant Secretary shall have such powers and perform such
duties as the Board of Directors, the Chairman of the Board, or the President
may from time to time prescribe.
SECTION 5.08 TREASURER. The Treasurer shall be the Chief Financial Officer of
the Corporation; shall have responsibility for the proper care and custody of
all corporate funds and securities; shall keep full, accurate and complete
records, receipts and disbursements of 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; shall render a report
to the Board of Directors, whenever requested, of the financial condition of the
Corporation; and shall perform such other duties as the Board of Directors may
prescribe. In the absence of a Corporate Controller, the Treasurer shall be
responsible for the performance of all the duties of the Controller. Each
Assistant Treasurer shall have such powers and perform such duties as the Board
of Directors, the Chairman of the Board or the President may from time to time
delegate.
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SECTION 5.09 CONTROLLER. The Controller, if one is elected, shall be the Chief
Accounting Officer of the Corporation and shall cause to be kept full and
accurate books and accounts of all assets, liabilities and transactions of the
Corporation. The Controller shall establish and administer an adequate plan for
the control of operations, including systems and procedures required to properly
maintain internal controls on all financial transactions of the Corporation. The
Controller shall cause to be prepared statements of the financial condition of
the Corporation and proper profit and loss statements covering the operations of
the Corporation and such other additional financial statements, if any, as the
Chairman of the Board, the President, the Treasurer or the Board of Directors
from time to time shall require. The Controller shall work under the direct
supervision of the Treasurer and also shall perform such other duties as may be
assigned to him by the Board of Directors, the Chairman of the Board or the
President.
SECTION 5.10 ASSISTANT OFFICERS. The Board of Directors may appoint one or more
assistant officers. Each assistant officer shall, at the request of or in the
absence or disability of the officer to whom he is an assistant, perform the
duties of such officer and shall have such other authority and perform such
other duties as the Board of Directors may prescribe.
SECTION 5.11 BONDS. If required by the Board of Directors, any officer shall
give the Corporation a bond in such form, in such sum, and with such surety or
sureties as shall be satisfactory to the Board, 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 their possession or under
their control belonging to the Corporation.
SECTION 5.12 SALARIES. The salaries of the officers of the Corporation shall be
fixed from time to time by the Board of Directors.
ARTICLE VI
CERTIFICATES OF STOCK
SECTION 6.01 ISSUANCE. Each shareholder shall be entitled to a certificate or
certificates representing shares of stock of the Corporation owned of record by
him upon his request therefor. The stock certificates of the Corporation shall
be numbered and registered in the stock ledger and transfer of books of the
Corporation as issued. Certificates shall be signed by the Chairman, President
or a Vice President and by the Secretary, an Assistant Secretary, the Treasurer
or an Assistant Treasurer, and shall bear the corporate seal. Any or all of the
signatures and the corporate seal upon such certificate may be a facsimile,
engraved or printed. In case any officer, transfer agent or registrar who has
signed, or whose facsimile signature has been place upon, any share certificate
shall have ceased to be such officer, transfer agent or registrar, the
certificate shall be valid and of the same force and effect as if he continued
to be such officer, transfer agent or registrar.
SECTION 6.02 TRANSFER. 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
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certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books. No transfer shall be made which would be
inconsistent with law.
SECTION 6.03 STOCK CERTIFICATES. Stock certificates of the Corporation shall be
in such form as provided by statute and approved by the Board of Directors. The
stock transfer books and the blank stock certificate books shall be kept by the
Secretary or by any officer or agency designated by the Board of Directors for
that purpose.
SECTION 6.04. LOST, STOLEN, DESTROYED OR MUTILATED 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 receipt by the Corporation of an
affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing issuance of a replacement
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 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 6.05. RECORD HOLDER OF SHARES. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the record
and beneficial owner of shares to receive dividends, to exercise voting rights
and for all purposes; and the Corporation shall not be bound to recognize any
equitable or other claim to or interest in such shares on the part of any other
person, even if the Corporation shall have notice thereof.
SECTION 6.06. DETERMINATION OF RECORD DATE. In order that the Corporation may
determine the shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or to receive payment of any dividend or
other distribution or allotment of any rights, or 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 60 nor less than 10 days before the date of such meeting or any
other action. If no record date is fixed: (1) The record date for determining
shareholders entitled to notice of or to vote at a meeting of shareholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. (2) The record date for
determining shareholders entitled to express consent to corporate action in
writing without a meeting, when no prior action by the Board of Directors is
necessary, shall be the day on which the first written consent is expressed. (3)
The record date for determining shareholders for any other purpose shall be at
the close of business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of shareholders of record entitled
to notice of or to vote at a meeting of shareholders 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.
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ARTICLE VII
INDEMNIFICATION OF DIRECTORS, OFFICERS
AND OTHER AUTHORIZED REPRESENTATIVES
SECTION 7.01. INDEMNIFICATION OF AUTHORIZED REPRESENTATIVES IN THIRD PARTY
PROCEEDINGS. To the maximum extent not prohibited by law, the Corporation shall
indemnify any person who was or is an "authorized representative" of the
Corporation (which shall mean for purposes of this Article a Director or officer
of the Corporation, or a person serving at the request of the Corporation as a
director, officer, partner or trustee of another corporation, partnership, joint
venture, trust or other business enterprise) and who was or is a "party" (which
shall include for purposes of this Article the giving of testimony or similar
involvement) or is threatened to be made a party to any "third party proceeding"
(which shall mean for purposes of this Article any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, arbitration,
administrative or investigative other than an action by or in the right of the
Corporation) by reason of the fact that such person was or is an authorized
representative of the Corporation, against expenses (which shall include for
purposes of this Article attorneys' fees and expenses), judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such third party proceeding if such person acted in
good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Corporation and, with respect to any
criminal third party proceeding (which could or does lead to a criminal third
party proceeding) had no reasonable cause to believe such conduct was unlawful.
The termination of any third party proceeding by judgment, order, settlement,
indictment, conviction or upon a plea of nolo contendere or its equivalent shall
not of itself create a presumption that the authorized representative did not
act in good faith and in a manner which such person reasonably believed to be in
or not opposed to the best interests of the Corporation and, with respect to any
criminal third party proceeding, had reasonable cause to believe that such
conduct was unlawful.
SECTION 7.02. INDEMNIFICATION OF AUTHORIZED REPRESENTATIVES IN CORPORATE
PROCEEDINGS. The corporation shall indemnify any person who was or is an
authorized representative of the Corporation and who was or is a party or is
threatened to be made a party to any "corporate proceeding" (which shall mean
for purposes of this Article any threatened, pending or completed action or suit
by or in the right of the Corporation to procure a judgment in its favor or
investigative proceeding by the Corporation) by reason of the fact that such
person was or is an authorized representative of the Corporation, against
expenses actually and reasonably incurred by such person in connection with the
defense or settlement of such corporate action if such person acted in good
faith and in a manner 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 claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation, unless and only to the extent that a
court of competent jurisdiction shall determine that, despite the adjudication
of liability but in view of all the circumstances of the case, such authorized
representative is fairly and reasonably entitled to be indemnified to the extent
such court shall order.
SECTION 7.03. MANDATORY INDEMNIFICATION OF AUTHORIZED REPRESENTATIVES.
To the extent that an authorized representative of the Corporation has been
successful on the merits or otherwise in defense of any third party proceeding
or corporate proceeding or in defense of any
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claim, issue or matter therein, such person shall be indemnified against
expenses actually and reasonably incurred by such person in connection
therewith.
SECTION 7.04 INDEMNIFICATION. To the full extent not prohibited by the law as in
effect from time to time, the Corporation shall indemnify any person (and the
heirs, executors and representatives of such person) who is or was a director,
officer, employee or agent of the Corporation, or who, at the request of this
Corporation, is or was a director, officer, employee, agent, partner, or
trustee, as the case may be, of any other corporation, partnership,
proprietorship, trust, association or other entity in which this Corporation
owns an interest, against any and all liabilities and reasonable expenses
incurred by such person in connection with or resulting from any claim, action,
suit or proceeding, whether brought by or in the right of the Corporation or
otherwise and whether civil, criminal, administrative or investigative in
nature, and in connection with an appeal relating thereto, in which such person
is a party or is threatened to be made a party by reason of serving or having
served in any such capacity.
SECTION 7.05 NO DIRECTOR LIABILITY IN CERTAIN CASES. To the maximum extent
permitted by law as in effect from time to time, no director of the Corporation
shall be liable to the Corporation or its shareholders for monetary damages for
breach of any fiduciary duty as a director, provided that this provision shall
not eliminate or limit the liability of a director for: (i) any breach of the
director's duty of loyalty to the Corporation or its shareholders; (ii) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; unlawful payment of dividends or stock redemptions; or (iv)
any transaction from which the director derived an improper personal benefit.
SECTION 7.06. DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION. Any
indemnification under Section 7.01, 7.02 or 7.03 of this Article (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 authorized representative
is proper in the circumstances because such person has either met the applicable
standards of conduct set forth in Section 7.01 or 7.02 or has been successful on
the merits or otherwise as set forth in Section 7.03 and that the amount
requested has been actually and reasonably incurred. Such determination shall be
made: (1) By the Board of Directors by a majority of a quorum consisting of
Directors who were not parties to such third party or corporate proceeding; or
(2) If such a quorum is not obtainable, or, even if obtainable, a majority vote
of such a quorum so directs, by independent legal counsel in a written opinion;
or (3) By the shareholders.
SECTION 7.07. ADVANCING EXPENSES. Expenses actually and reasonably incurred in
defending a third party or corporate proceeding shall be paid on behalf of an
authorized representative by the Corporation in advance of the final disposition
of such third party or corporate proceeding as authorized in the manner provided
in Section 7.04 of this Article upon receipt of an undertaking by or on behalf
of the authorized representative to repay such amount unless it shall ultimately
be determined that such person is entitled to be indemnified by the Corporation
as authorized in this Article. The financial ability of such authorized
representative to make such repayment shall not be a prerequisite to the making
of an advance.
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SECTION 7.08. EMPLOYEE BENEFIT PLANS. For purposes of this Article, the
Corporation shall be deemed to have requested an authorized representative to
serve an employee benefit plan where the performance by such person of duties to
the Corporation also imposes duties on, or otherwise involves services by, such
person to the plan or participants or beneficiaries of the plan; excise taxes
assessed on an authorized representative with respect to an employee benefit
plan pursuant to applicable law shall be deemed "fines"; and action taken or
omitted by such person with respect to an employee benefit plan in the
performance of duties for a purpose reasonably believed to be in the interest of
the participants and beneficiaries of the plan shall be deemed to be for a
purpose which is not opposed to the best interests of the Corporation.
SECTION 7.09. SCOPE. The indemnification of and advancement of expenses to
authorized representatives, as authorized by this Article, shall (1) not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any statute, agreement, vote of
shareholders or disinterested Directors or otherwise, both as to action in an
official capacity and as to action in another capacity, (2) continue as to a
person who has ceased to be an authorized representative, and (3) inure to the
benefit of the heirs, executors and administrators of such a person.
SECTION 7.10. RELIANCE. Each person who shall act as an authorized
representative of the Corporation shall be deemed to be doing so in reliance
upon rights of indemnification provided by this Article.
SECTION 7.11. INSURANCE. The Corporation may but shall not be obligated to
purchase and maintain insurance at its expense on behalf of any person who is or
was an authorized representative against any liability asserted against him in
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.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.01. 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 only out of
funds or property lawfully available therefor, pursuant to law. Dividends may be
paid in cash, in property, or in shares of the capital stock or held by the
Corporation subject to the provisions of the Certificate of Incorporation.
Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum of sums as the Directors from time
to time, in its absolute discretion, thinks proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Corporation, or for such other purpose as the Directors
shall determine to be in the interests of the Corporation, and the Board of
Directors may modify or abolish such reserve in the manner and at the time the
Board of Directors or Committee thereof so determines.
SECTION 8.02. ANNUAL STATEMENTS. The Board of Directors, through the officers of
the Corporation, shall present at each annual meeting, and at any special
meeting of the shareholders
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when called for by vote of the shareholders, a full and clear statement of the
business and condition of the Corporation.
SECTION 8.03. CONTRACTS. Except as otherwise provided in these Bylaws, the Board
of Directors may authorize any officer or officers or any agent or agents to
enter into any contract or to execute and deliver any instrument on behalf of
the Corporation and such authority may be general or confined to specific
instances.
SECTION 8.04. CHECKS. All checks, notes, bills of exchange or other orders in
writing shall be signed by such person or persons as the Board of Directors may
from time to time designate.
SECTION 8.05. CORPORATE SEAL. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal", and the state of incorporation of the Corporation. The seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
SECTION 8.06. DEPOSITS. All funds of the Corporation shall be deposited from
time to time to the credit of the Corporation in such banks, trust companies, or
their depositories as the Board of Directors may approve or designate; and all
such funds may be withdrawn only upon checks or withdrawal requests signed by
such one or more officers or employees as the Board of Directors shall from time
to time determine.
SECTION 8.07. AMENDMENT OF BYLAWS. These Bylaws may be altered, amended or
repealed or new bylaws may be adopted by the shareholders or by the Board of
Directors at any regular meeting of the shareholders or of the Board of
Directors or at any special meeting of the shareholders or of the Board of
Directors if notice of such alteration, amendment, repeal or adoption of new
bylaws be contained in the notice of such special meeting.
SECTION 8.08. FISCAL YEAR. The fiscal year of the Corporation shall begin on the
first day of January and end on the 31st day of December, unless otherwise
provided by resolution of the Board of Directors.
SECTION 8.09. INTERESTED DIRECTORS. No contract or transaction between the
Corporation and one or more of its Directors or officers, or between the
Corporation and any other company, partnership, association or other
organization in which one or more of its Directors or officers are directors or
officers or have a financial interest, shall be void or voidable solely for this
reason, or solely because the Director or officer is present at or participates
in the meeting of the Board of Directors or Committee thereof which authorizes
the contract or transaction, or solely because his or their vote is counted for
such purpose; if: (1) the material facts as to his relationship or interest are
disclosed to the Board or the Committee, and the Board or Committee in good
faith authorizes the contract or transaction by the affirmative vote of a
majority of the disinterested Directors, even though the disinterested Directors
be less than a quorum; or (2) the material facts as to his relationship or
interest are disclosed to the shareholders or Directors entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of the shareholders or Board of Directors; or (3) the contract or
transaction is fair as to the Corporation as of the time it is
<PAGE>
authorized, approved, adopted or ratified by the Board of Directors or a
Committee thereof or by the shareholders. Interested Directors may be counted in
determining the presence of a quorum at a meeting of the Board or of a Committee
of the Board which authorizes the contract or transaction.
SECTION 8.10. FORM OF RECORDS. Any records maintained by the Corporation in the
regular course of its business, including its stock ledger, books of account and
minute books, may be kept on, or be in the form of, punch cards, magnetic tape,
photographs, microphotographs or any other information storage device, provided
that the records so kept can be converted into clearly legible form within a
reasonable time. The Corporation shall convert any records so kept upon the
request of any person entitled to inspect the same.
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