Exhibit 1.3
BYLAWS
of
CBCOM, INC.
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TABLE OF CONTENTS
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Page
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ARTICLE I - Offices
Section 1.01 Registered Office 1
Section 1.02 Principal Office 1
Section 1.03 Other Offices 1
ARTICLE II - Meetings of Stock holders
Section 2.01 Annual Meetings 1
Section 2.02 Special Meeting 1
Section 2.03 Place of Meetings 2
Section 2.04 Notice of Meetings 2
Section 2.05 Quorum 3
Section 2.06 Voting 3
Section 2.07 List of Stockholders 5
Section 2.08 Inspector of Election 5
Section 2.09 Stockholder Action Without Meetings 5
Section 2.10 Record Date 6
ARTICLE III - Board of Directors
Section 3.01 General Powers 6
Section 3.02 Number and Term 6
Section 3.03 Election of Directors 7
Section 3.04 Resignation and Removal 7
Section 3.05 Vacancies 7
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Section 3.06 Place of Meeting; Telephone
Conference Meeting 8
Section 3.07 First Meeting 8
Section 3.08 Regular Meetings 8
Section 3.09 Special Meetings 8
Section 3.10 Quorum and Action 9
Section 3.11 Action by Consent 9
Section 3.12 Compensation 9
Section 3.13 Committees 9
Section 3.14 Officers of the Board 10
ARTICLE IV - Officers
Section 4.01 Officers 10
Section 4.02 Election and Term 10
Section 4.03 Subordinate Officers 10
Section 4.04 Removal and Resignation 11
Section 4.05 Vacancies 11
Section 4.06 President 11
Section 4.07 Chairman of the Board 11
Section 4.08 Vice President 11
Section 4.09 Secretary 12
Section 4.10 Treasurer 12
Section 4.11 Compensation 13
ARTICLE V -Contracts, Checks, Drafts Bank Accounts, Etc.
Section 5.01 Execution of Contracts 13
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Section 5.02 Checks, Drafts, Etc. 13
Section 5.03 Deposit 14
Section 5.04 General and Special Bank Accounts 14
ARTICLE VI - Shares and Their Transfer
Section 6.01 Certificates for Stock 14
Section 6.02 Transfer of Stock 15
Section 6.03 Regulations 15
Section 6.04 Lost, Stolen, Destroyed and
Mutilated Certificates 16
Section 6.05 Representation of Shares
of Other Corporation 16
ARTICLE VII - Indemnification
Section 7.01 Actions Other Than By or In
The Right of the Corporation 16
Section 7.02 Actions by or In the Right of the
Corporation 17
Section 7.03 Determination of Right of
Indemnification 17
Section 7.04 Indemnification Against
Expenses of Successful Party 18
Section 7.05 Advance of Expenses 18
Section 7.06 Other Rights and Remedies 18
Section 7.07 Insurance 18
Section 7.08 Constituent Corporations 19
Section 7.10 Broadest Lawful Indemnification 19
Section 7.11 Term 21
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Section 7.12 Severability 21
Section 7.13 Amendments 21
ARTICLE VIII - Miscellaneous
Section 8.01 Seal 22
Section 8.02 Waiver of Notices 22
Section 8.03 Loans and Guaranties 22
Section 8.04 Gender 22
Section 8.05 Amendments 22
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BYLAWS
of
CBCOM, INC.
a Delaware Corporation
ARTICLE I
OFFICES
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Section 1.01 REGISTERED OFFICE. The registered office of CBCom, Inc.
(hereinafter called the "Corporation") shall be at such place in the State of
Delaware as shall be designated by the Board of Directors (hereinafter called
the "Board").
Section 1.02 PRINCIPAL OFFICE. The principal office for the transaction of
the business of the Corporation shall be at such location, within or without the
State of Delaware, as shall be designated by the Board.
Section 1.03 OTHER OFFICES. The Corporation may also have an office or
offices at such other place or places, either within or without the State of
Delaware, as the Board may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
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Section 2.01 ANNUAL MEETINGS. Annual meetings of the stockholders of the
Corporation for the purpose of electing directors and for the transaction of
such other proper business as may come before such meetings may be held at such
time, date and place as the Board shall determine by resolution.
Section 2.02 SPECIAL MEETINGS. Special meetings of the stockholders of the
Corporation for any purpose or purposes may be called at any time by the Board,
or by a committee of the Board which has been duly designated by the Board and
whose powers and authority, as provided in a resolution of the Board or in the
Bylaws, include the power to call such meetings, but such special
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meetings may not be called by any other person or person; provided, however,
that if and to the extent that any special meeting of stockholders may be called
by any other person or persons specified in any provisions of the Certificate of
Incorporation or any amendment thereto or any certificate filed under Section
151 (g) of the General Corporation Law of the State of Delaware (or its
successor statute as in effect from time to time hereafter), then such special
meeting may also be called by the person or persons, in the manner, at the time
and for the purposes so specified.
Section 2.03 PLACE OF MEETINGS. All meetings of the stockholders shall be
held at such places, within or without the State of Delaware, as may from time
to time be designated by the person or persons calling the respective meetings
and specified in the respective notices or waivers of notice thereof.
Section 2.04 NOTICE OF MEETINGS. Except as otherwise required by law,
notice of each meeting of the stockholders, whether annual or special, shall be
given not less than ten (10) nor more than sixty (60) days before the data of
the meeting to each stockholder of record entitled to vote at such meeting by
delivering a typewritten or printed notice thereof to him personally, or by
depositing such notice in the United States mail, in a postage prepaid envelope,
directed to him at his address furnished by him to the Secretary of the
Corporation for such purpose or, if he shall not have furnished to the Secretary
his address for such purpose, then at his address last known to the Secretary,
or by transmitting a notice thereof to him at such address by telegraph, cable
or wireless. Except as otherwise expressly required by law, no publication of
any notice of a meeting of the stockholders shall be required. Every notice of
a meeting of the stockholders shall state the place, date and hour of the
meeting, and, in the case of a special meeting shall also state the purpose or
purposes for which the meeting is called. Except as otherwise expressly
required by law, notice of any adjourned meeting of the stockholders need not be
given if the time and place thereof are announced at the meeting at which the
adjournment is taken.
Whenever notice is required to be given to any stockholder to whom (i)
notice of two consecutive annual meetings, and all notices of meetings or of the
taking of action by written consent without a meeting to such person during the
period between such two consecutive annual meetings, or (ii) all, and at least
two,
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payments (if sent by first class mail) of dividends or interest on securities
during a twelve month period, have been mailed addressed to such person at his
address as shown on the records of the Corporation and have been returned
undeliverable, the giving of such notice to such person shall not be required.
Any action or meeting which shall have been taken or held without notice to such
person shall the same force and effect as if such notice had been duly given.
If any such person shall deliver to the Corporation a written notice setting
forth his then current address, the requirement that notice be given to such
person shall be reinstated.
No notice need be given to any person with whom communication is unlawful,
nor shall there be any duty to apply for any permanent or license to give notice
to any such person.
Section 2.05 QUORUM. Except as provided by law, the holders of record of a
majority in voting interest of the shares of stock of the Corporation entitled
to be voted, present in person or by proxy, shall constitute a quorum for the
transaction of business at any meeting of the stockholders of the Corporation or
any adjournment thereof. The stockholders present at a duly called or held
meeting at which a quorum is present may continue to do business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum. In the absence of a quorum at any meeting or any adjournment
thereof, a majority in voting interest of the stockholders present in person or
by proxy and entitled to vote thereat or, in the absence therefrom of all the
stockholders, any officer entitled to preside at or to act as secretary of such
meeting may adjourn such meeting from time to time. At any such adjourned
meeting at which a quorum is present any business may be transacted which might
have been transacted at the meeting as originally called.
Section 2.06 VOTING
(a) At each meeting of the stockholders, each stockholder shall be entitled
to vote in person or by proxy each share or fractional share of the stock of the
Corporation which has voting rights on the matter in question and which shall
have been held by him and registered in his name on the books of the
Corporation:
(i) on the date fixed pursuant to Section 6.05 of these Bylaws as the
record date for the determination of stockholders entitled to notice of and to
vote at such meeting, or
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(ii) if no such record date shall have been so fixed, then (A) at the close
of business on the day next preceding the day on which notice of the meeting
shall be given or (B) if notice of the meeting shall be waived, at the close of
business on the day next preceding the day on which the meeting shall be held.
(b) Shares of its own stock belonging to the Corporation or to another
corporation, if a majority of the shares entitled to vote in the election of
directors in such other corporation is held, directly or indirectly, by the
Corporation, shall neither be entitled to vote nor be counted for quorum
purposes. Persons holding stock of the Corporation in a fiduciary capacity
shall be entitled to vote such stock. Persons whose stock is pledged shall be
entitled to vote, unless in the transfer by the pledgor on the books of the
Corporation he shall have expressly empowered the pledgee, or his proxy, may
represent such stock and vote thereon. Stock having voting power standing of
record in the names of two or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by the entirety or
otherwise, or with respect to which two or more persons have the same fiduciary
relationship, shall be voted in accordance with the provisions of the General
Corporation Law of Delaware.
(c) Any such voting rights may be exercised by the stockholder entitled
thereto in person or by his proxy appointed by an instrument in writing,
subscribed by such stockholder or by his attorney thereunto authorized and
delivered to the secretary of the meeting; provided, however, that no proxy
shall be voted or acted upon after three years from its date unless said proxy
shall provide for a longer period. The attendance at any meeting of a
stockholder who may theretofore have given a proxy shall not have the effect of
revoking the same unless he shall in writing so notify the secretary of the
meeting prior to the voting of the proxy. At any meeting of the stockholders
all matters, except as otherwise provided in the Certificate of Incorporation,
in these Bylaws or by law, shall be decided by the vote of a majority in voting
interest of the stockholders present in person or by proxy and entitled to vote
thereat and thereon. The stockholders present at a duly called or held meeting
at which a quorum is present may continue to do business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave
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less than a quorum. The vote at any meeting of the stockholders on any question
need not be by ballot, unless so directed by the chairman of the meeting. On a
vote by ballot, each ballot shall be signed by the stockholder voting, or by his
proxy if there be such proxy, and it shall state the number of shares voted.
Section 2.07 LIST OF STOCKHOLDERS. The Secretary of the Corporation shall
prepare and make, 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
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 entire
duration thereof, and may be inspected by any stockholder who is present.
Section 2.08 INSPECTOR OF ELECTION. If at any meeting of the stockholders
a vote by written ballot shall be taken on any question, the chairman of such
meeting may appoint an inspector or inspectors of election to act with respect
to such vote. Each inspector so appointed shall first subscribe an oath
faithfully to execute the duties of an inspector at such meeting with strict
impartiality and according to the best of his ability. Such inspectors shall
decide upon the qualification of the voters and shall report the number of
shares represented at the meeting and entitled to vote on such question, shall
conduct and accept the votes, and, when the voting is completed, shall ascertain
and report the number of shares voted respectively for and against the question.
Reports of the inspectors shall be in writing and subscribed and delivered by
them to the Secretary of the Corporation. Inspectors need not be stockholders
of the Corporation, and any officer of the Corporation may be an inspector on
any question other than a vote for or against a proposal in which he shall have
a material interest.
2.09 STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required by the
General Corporation Law of the State of Delaware to be taken at any annual or
special meeting of the stockholders,
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or any action which may be taken at any annual or special meeting of the
stockholders, may be taken without a meeting, without prior notice and without a
vote, if a consent in writing setting forth the action so taken shall be signed
by the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted. 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 2.10 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 may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board and which record date: (i) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty nor
less than ten days before the date of such meeting; (ii) in the case of
determination of stockholders entitled to express consent to corporate action in
writing without a meeting, shall not be more than ten days from the date upon
which the resolution fixing the record date is adopted by the Board; and (iii)
in the case of any other action, shall not be more than sixty days prior to such
other action. If no record date is fixed; (i) the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held; (ii) the record date for
determining stockholders entitled to express consent to corporate action in
writing without a meeting when no prior action of the Board is required by law,
shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the corporation in
accordance with applicable law, or, if prior action by the Board is required by
law, shall be at the close of business
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on the day on which the Board adopts the resolution taking such prior action;
and (iii) the record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board may fix a
new record date for the adjourned meeting.
ARTICLE III
BOARD OF DIRECTORS
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Section 3.01 GENERAL POWERS. The property, business and affairs of the
Corporation, shall be managed by or under the direction of the Board, which may
exercise all of the powers of the Corporation, except such as are by the
Certificate of Incorporation, by these Bylaws or by law conferred upon or
reserved to the stockholders.
Section 3.02 NUMBER AND TERM. The Board shall consist of three (3) to
seven (7) members, the number of which shall be three (3) until changed
thereafter from time to time by resolution of the Board. Directors need not be
stockholders of the Corporation. Each director shall hold office until a
successor is elected and qualified or until the director resigns or is removed.
Section 3.03 ELECTION OF DIRECTORS. The directors shall be elected by the
stockholders of the Corporation, and at each election the persons receiving the
greatest number of votes, up to the number of directors then to be elected,
shall be the persons then elected. The election of directors is subject to any
provisions contained in the Certificate of Incorporation relating thereto,
including any provisions for a classified board.
Section 3.04 RESIGNATION AND REMOVAL. Any director of the Corporation may
resign at any time by giving written notice to the Board or to the Secretary of
the Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time is not specified, it shall take effect immediately upon
its receipt; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
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Except as otherwise provided by the Certificate of Incorporation or by law,
any director or the entire board of directors may be removed, with or without
cause, by the holders of a majority of shares then entitled to vote at an
election of directors.
Section 3.05 VACANCIES. Except as otherwise provided in the Certificate of
Incorporation, any vacancy in the Board, whether because of death, resignation,
disqualification, an increase in the number of directors, or any other cause,
may be filled by vote of the majority of the remaining directors, although less
than a quorum, or by a sole remaining director. Each director so chosen to fill
a vacancy shall hold office until his successor shall have been elected and
shall qualify or until he shall resign or shall have been removed. No reduction
of the authorized number of directors shall have the effect of removing any
director prior to the expiration of his term of office.
Upon the resignation of one or more directors from the Board, effective at
a future date, a majority of the directors then in office, including those who
have so resigned, shall have the power to fill such vacancy or vacancies, the
vote thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office as provided hereinabove
in the filling of other vacancies.
Section 3.06 PLACE OF MEETING; TELEPHONE CONFERENCE MEETING. The Board my
hold any of its meetings at such place or places within or without the State of
Delaware as the Board may from time to time by resolution designate or as shall
by the person or persons calling the meeting or in the notice or waiver of
notice of any such meeting. Directors may participate in any regular or special
meeting of the Board by means of conference telephone or similar communications
equipment pursuant to which all person participating in the meeting of the Board
can hear each other, and such participation shall constitute presence in person
at such meeting.
Section 3.07 FIRST MEETING. The Board shall meet as soon as practicable
after each annual election of directors and notice of such first meeting shall
not be required.
Section 3.08 REGULAR MEETINGS. Regular meetings of the Board may be held
at such times as the Board shall from time to time by resolution determine. If
any day fixed for a meeting
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shall be a legal holiday at the place where the meeting is to be held, then the
meeting shall be held at the same hour and place on the next succeeding business
day which is not a legal holiday. Except as provided by law, notice of regular
meetings need not be given.
Section 3.09 SPECIAL MEETINGS. Special meetings of the Board may be called
at any time by the Chairman of the Board or the President or b any two (2)
directors, to be held at the principal office of the Corporation, or at such
other place or places, within or without the State of Delaware, as the person or
persons calling the meeting may designate.
Notice of the time and place of special meetings shall be given to each
director either (i) by mailing or otherwise sending to him a written notice of
such meeting, charges prepaid, addressed to him at his address as it is shown
upon the records of the Corporation, or if it is not so shown on such records or
is not readily ascertainable, at the place in which the meetings of the
directors are regularly held, at least seventy-two (72) hours prior to the time
of the holding of such meeting; or (ii) by orally communicating the time and
place of the special meeting to him at least forty-eight (48) hours prior to the
time of the holding of such meeting. Either of the notices as above provided
shall be due, legal and personal notice to such director.
Section 3.10 QUORUM AND ACTION. Except as otherwise provided in these
Bylaws or by law, the presence of a majority of the authorized number of
directors shall be required to constitute a quorum for the transaction of
business at any meeting of the Board, and all matters shall be decided at any
such meeting, a quorum being present, by the affirmative votes of a majority of
the directors present. In the absence of a quorum, a majority of directors
present at any meeting may adjourn the same from time to time until a quorum
shall be present. Notice of any adjourned meeting need not be given. The
directors shall act only as a Board, and the individual directors shall have no
power as such.
Section 3.11 ACTION BY CONSENT. Any action required or permitted to be
taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all members of the
Board or of such committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the Board or such committee.
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Such action by written consent shall have the same force and effect as the
unanimous vote of such directors.
Section 3.12 COMPENSATION. No stated salary need be paid to directors, as
such, for their services but, as fixed from time to time by resolution of the
Board, the directors my receive directors' fees, compensation and reimbursement
for expenses for attendance at directors' meetings, for serving on committees
and for discharging their duties; provided that nothing herein contained shall
be construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
Section 3.13 COMMITTEES. The Board may, by resolution passed by a majority
of the whole Board, designate one or more committees, each committee to consist
of one or more of the directors of the Corporation. The Board my designate one
or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. In the absence
or disqualification of a member of the committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or disqualified
member. Any such committee, to the extent permitted by law and provided in the
resolution of the Board, shall have and may exercise all the powers and affairs
of the Corporation, and may authorize the seal of the Corporation to be affixed
to all papers which may require it.
Unless the Board otherwise provides, each committee designated by the Board
may make, alter and repeal rules for conduct of its business. In the absence of
such rules each committee shall conduct its business in the same manner as the
Board conducts its business pursuant to these Bylaws. Any such committee shall
keep written minutes of its meetings and report the same to the Board when
required.
Section 3.14 OFFICERS OF THE BOARD. A Chairman of the Board or a Vice
Chairman may be appointed from time to time by the Board and shall have such
powers and duties as shall be designated by the Board.
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ARTICLE IV
OFFICERS
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Section 4.01 OFFICERS. The officers of the Corporation shall be a
President, a Secretary and a Treasurer. The Corporation may also have, at the
discretion of the Board, a Chairman of the Board, a Chief Executive Officer, one
or more Vice Presidents, one or more Assistant Vice Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers and such other officers
as may be appointed in accordance with the provisions of Section 4.03 of these
Bylaws. One person may hold two or more offices, except that the Secretary may
not also hold the office of President. The salaries of all officers of the
Corporation shall be fixed from time to time by the Board.
Section 4.02 ELECTION AND TERM. The officers of the Corporation, except
such officers as may be appointed in accordance with the provisions of Section
4:03 or Section 4.05 of these Bylaws, shall be chosen annually by the Board, and
each shall hold his office until he shall resign or shall be removed or
otherwise disqualified to serve, or until his successor shall be elected and
qualified.
Section 4.03 SUBORDINATE OFFICERS. The Board may appoint, or may authorize
the Chief Executive officer to appoint, such other officers as the business of
the Corporation may require, each of whom shall have such authority and perform
such duties as are provided in these Bylaws or as the Board or the President
from time to time may specify, and shall hold office until he shall resign or
shall be removed or otherwise disqualified to serve.
Section 4.04 REMOVAL AND RESIGNATION. Any officer may be removed, with or
without cause, by a majority of the directors at the time in office, at any
regular or special meeting of the Board, or, except in case of an officer chosen
by the Board, by the Chief Executive Officer upon whom such power of removal may
be conferred by the Board.
Any officer may resign at any time by giving written notice to the Board,
the Chairman of the Board, the President or the secretary of the Corporation.
Any such resignation shall take effect at the date of the receipt of such notice
or at any later time specified therein; and unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
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Section 4.05 VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in the Bylaws for the regular appointments to such office.
Section 4.06 PRESIDENT. The President of the Corporation shall, subject to
the control of the Board, have general supervision, direction and control of the
business and affairs of the Corporation. He shall preside at all meetings of
stockholders and the Board. He shall have the general powers and duties of
management usually vested in the chief executive officer of a corporation, and
shall have such other powers and duties with respect to the administration of
the business and affairs of the Corporation as may from time to time be assigned
to him by the Board or as prescribed by the Bylaws.
Section 4.07 CHAIRMAN OF THE BOARD. The Chairman of the Board, if any,
shall preside at all meetings of the stockholders and the Board and exercise and
perform such other powers and duties with respect to the administration of the
business and affairs of the Corporation as may from time to time be assigned to
him by the Board or as is prescribed by the bylaws.
Section 4.08 VICE PRESIDENT. The Vice President(s), if any, shall exercise
and perform such powers and duties with respect to the administration of the
business and affairs of the Corporation as from time to time may be assigned to
each of them by the President, by the Chairman of the Board, if any, by the
Board or as is prescribed by the bylaws. In the absence or disability of the
President, the Vice Presidents, in order of their rank as fixed by the Board, or
if not ranked, the Vice President designated by the Board, shall perform all of
the duties of the President and when so acting shall have all of the powers of
and be subject to all the restrictions upon the President.
Section 4.09 SECRETARY. The Secretary shall keep, or cause to be kept, a
book of minutes at the principal office for the transaction of the business of
the Corporation, or such other place as the Board may order, of all meetings of
directors and stockholders, with the time and place of holding, whether regular
or special, and if special, how authorized and the notice thereof given, the
names of those present at directors' meetings, the number of shares present or
represented at stockholders' meetings and the proceedings thereof.
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The Secretary shall keep, or cause to be kept, at the principal office for
the transaction of the business of the Corporation or at the office of the
Corporation's transfer agent, a share register, or a duplicate share register,
showing the names of the stockholders and their addresses, the number and
classes of shares held by each, the number and date of certificates issued for
the same, and the number and date of cancellation of every certificate
surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all the meetings
of the stockholders and of the Board required by these Bylaws or by law to be
given, and he shall have such other powers and perform such other duties as may
be prescribed by the Board or these Bylaws. If for any reason the Secretary
shall fail to give notice of any special meeting of the Board called by one or
more of the persons identified in Section 3.09 of these Bylaws, or if he shall
fail to give notice of any special meeting of the stockholders called by one or
more of the persons identified in Section 2.02 of these Bylaws, then any such
person or persons may give notice of any such special meeting.
Section 4.10 TREASURER. The Treasurer shall keep and maintain or cause to
be kept and maintained, adequate and correct accounts of the properties and
business transactions of the Corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, surplus and
shares. Any surplus, including earned reduction of capital, shall be classified
according to source and shown in a separate account. The books of account at
all reasonable times shall be open to inspection by any director.
The Treasurer shall deposit all moneys and other valuables in the name and
to the credit of the Corporation with such depositories as may be designated by
the Board. He shall disburse the funds of the Corporation as may be ordered by
the Board, shall render to the President, to the Chief Executive Officer and to
the directors, whenever they request it, and account of all his transactions as
Treasurer and of the financial condition of the Corporation, and shall have such
other powers and perform such other duties as may be prescribed by the Board or
these Bylaws.
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Section 4.11 COMPENSATION. The compensation of the officers of the
Corporation, if any, shall be fixed from time to time by the Board.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
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Section 5.01 EXECUTION OF CONTRACTS. The Board, except as otherwise
provided for in these Bylaws, may authorize any officer of officers, agent or
agents, to enter into any contract or execute any instrument in the name and on
behalf of the Corporation, and such authority may be general or confined to
specific instances; and unless so authorized by the Board or by these Bylaws, no
officer, agent or employee shall have any power or authority to ind the
Corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or in any amount.
Section 5.02 CHECKS, DRAFTS, ETC. Al checks, drafts or other orders for
payment of money, notes or other evidence of indebtedness, issued in the name of
or payable to the Corporation, shall be signed or endorsed by such person or
persons and such manner as, from time to time, shall be determined by resolution
of the Board. Each such person shall give such bond, if any, as the Board may
require.
Section 5.03 DEPOSIT. 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 Boards may select, or as may
be selected by any officer or officers, assistants, agent or agents, attorney or
attorneys, of the Corporation to whom such power shall have been delegated by
the Board. For the purpose of deposit and for the purpose of collection for the
account of the Corporation, the President, the Chief Executive Officer, any Vice
President or the Treasurer (or any other officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the Corporation who
shall be determined by the Board from time to time) may endorse, assign and
deliver checks, drafts and other orders for the payment of money which are
payable to the order of the Corporation.
Section 5.04 GENERAL AND SPECIAL BANK ACCOUNTS. The Board from time to
time may authorize the opening and keeping of general
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and special bank accounts with such banks, trust companies or other depositories
as the Board may select or as may be selected by an officer or officers,
assistant or assistants, agent or agents, or attorney or attorneys of the
Corporation to whom such power shall have been delegated by the Board. The
Board may make such special rules and regulations with respect to such bank
accounts, not inconsistent with the provisions of these Bylaws, as it may deem
expedient.
ARTICLE VI
SHARES AND THEIR TRANSFER
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Section 6.01 CERTIFICATES FOR STOCK. Every owner of stock of the
Corporation shall be entitled to have a certificate or certificates, in such
form as the Board shall prescribe, certifying the number and class of shares of
the stock of the Corporation owned by him. The certificates representing shares
of such stock shall be numbered in the order in which they shall be issued and
shall be signed in the name of the Corporation by the Chairman of the Board, the
President or a Vice President and by the Secretary or an Assistant Secretary or
by the Treasurer or an Assistant Treasurer. Any or all of the signatures on the
certificates may be a facsimile. In case of any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon any
such certificate shall thereafter have ceased to be such officer, transfer agent
or registrar before such certificate is issued, such certificate may
nevertheless be issued by the Corporation with the same effect as though the
person who signed such certificate, or whose facsimile signature shall have been
placed thereupon, were such officer, transfer agent or registrar at the date of
issue. A record shall be kept of the respective names of the persons, firms or
corporations owning the stock represented by such certificates, respectively,
and the respective dates thereof, and in case of cancellation, the respective
dates thereof, and in case of cancellation, the respective dates of
cancellation. Every certificate surrendered to the Corporation for exchange or
transfer shall be canceled, and no new certificate or certificates shall be
issued in exchange for any existing certificate until such existing certificate
shall have been so canceled, except in cases provided for in Section 6.04 of
these Bylaws.
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Section 6.02 TRANSFER OF STOCK. Transfer of shares of stock of the
Corporation shall be made only on the books of the Corporation by the registered
holder thereof, or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary, or with a transfer clerk or a
transfer agent appointed as provided in Section 6.03 of these Bylaws, and upon
surrender of the certificate or certificates for such shares properly endorsed
and the payment of all taxes thereon. The person in whose name shares of stock
stand on the books of the Corporation shall be deemed the owner thereof for all
purposes as regards the Corporation. Whenever any transfer of shares shall be
made for collateral security, and not absolutely, such fact shall be stated
expressly in the entry of transfer if, when the certificate or certificates
shall be presented to the Corporation for transfer, both the tranferor and the
transferee request the Corporation to do so.
Section 6.03 REGULATIONS. The Board may make such rules and regulations as
it may deem expedient, not inconsistent with these Bylaws, concerning the issue,
transfer and registration of certificates for shares of the stock of the
Corporation. The Board may appoint, or authorize any officer or officers to
appoint, one or more transfer clerks or one or more transfer agents and one or
more registrars, and may require all certificates for stock to bear the
signature or signatures of any of them.
Section 6.04 LOST, STOLEN, DESTROYED AND MUTILATED CERTIFICATES. In any
case of loss, theft, destruction, or mutilation of any certificate of stock,
another may be issued in its place upon proof of such loss, theft, destruction,
or mutilation and upon the giving of a bond of indemnity to the Corporation in
such form and in such sums as the Board may direct; provided, however, that a
new certificate may be issued without requiring any bond when, in the judgment
of the Board, it is proper to do so.
Section 6.05 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The President
or any Vice President and the Secretary or any Assistant secretary of this
Corporation are authorized to vote, represent and exercise on behalf of this
Corporation all rights incident to all shares of any other corporation or
corporations standing in the name of this corporation. The authority herein
granted to said officers to vote or represent on behalf of this Corporation any
and all shares held by this Corporation in any other corporation or corporations
may be exercised either by such
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officers in person or by any person authorized so to do by prozy or power of
attorney duly executed by said officers.
ARTICLE VII
INDEMNIFICATION
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Section 7.01 ACTIONS OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify any person who was or is a party or is threatened to
by made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise or as a member of any committee or similar body, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or proceeding by
judgement, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in, or
not opposed to, the best interests of the Corporation, and, with respect to any
criminal action or proceeding, that he had reasonable cause to believe that his
conduct was unlawful.
Section 7.02 ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, or as a member of any committee or similar
body, against expenses (including attorneys' fees) actually and reasonable
incurred by
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him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, 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 the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
Section 7.03 DETERMINATION OF RIGHT OF INDEMNIFICATION. Any
indemnification under Section 7.01 or 7.02 of these Bylaws (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 Sections 7.01 and 7.02 of these Bylaws. Such
determination shall be made (i) by the Board by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or proceeding,
or (ii) if such a quorum is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders.
Section 7.04 INDEMNIFICATION AGAINST EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding the other provisions of this Article VII, 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 action, suit or proceeding referred to
in Section 7.01 or 7.02 of these Bylaws, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
Section 7.05 ADVANCE OF EXPENSES. Expenses incurred by an officer or
director in defending a civil or criminal action, suit or proceeding may be paid
by the Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board upon receipt of an undertaking by or on
behalf of the director or officer, to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the
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Corporation as authorized in this Article VII. Such expenses incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the Board deems appropriate.
Section 7.06 OTHER RIGHTS AND REMEDIES. The indemnification and
advancement of expenses provided by, or granted pursuant to, the other Sections
of this Article VII shall not be deemed exclusive and are declared expressly to
be nonexclusive of any other rights to which those seeking indemnification or
advancements of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
Section 7.07 INSURANCE. Upon resolution passed by the Board, the
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise or as a member of any committee or similar body against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article VII.
Section 7.08 CONSTITUENT CORPORATIONS. For the purposes of this Article
VII, references to "the Corporation" include in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation or is or
was serving at the request of such agent of another corporation, partnership,
joint venture, trust or other enterprise or as a member of any committee or
similar body shall stand in the same position under the provisions of this
Article VII with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation it its separate existence had
continued.
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Section 7.09 EMPLOYEE BENEFIT PLANS. For the purposes of this Article VII,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to any 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 VII.
Section 7.10. BROADEST LAWFUL INDEMNIFICATION. In addition to the
foregoing, the Corporation shall, to the broadest and maximum extent permitted
by Delaware law, as the same exists from time to time (but, in case of any
amendment to or change in Delaware law, only to the extent that such amendment
or change permits the Corporation to provide broader rights of indemnification
than is permitted to the Corporation prior to such amendment or change),
indemnify each person who was or is a party or is threatened to be made a party
to any threatened, pending or completed administrative or investigative by
reason of the fact that he is or was a director or officer of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding. In
addition, the Corporation shall, to the broadest and maximum extent permitted by
Delaware law, as the same may exist from time to time (but, in case of any
amendment to or change in Delaware law, only to the extent that such amendment
or change permits the Corporation to provide broader rights of payment of
expenses incurred in advance of the final disposition of an action, suit or
proceeding than is permitted to the Corporation prior to such amendment or
change), pay to such person any and all expenses (including attorneys' fees)
incurred in defending or settling any such action, suit or proceeding in advance
of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf
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of the director or officer, to repay such amount if it shall ultimately be
determined by a final judgment or other final adjudication that he is not
entitled to be indemnified by the Corporation as authorized in this Section
7.10. The first sentence of this Section 7.10 to the contrary notwithstanding,
the Corporation shall not indemnify any such person with respect to any of the
following matters: (i) remuneration paid to such person if it shall be
determined by a final judgment or other final adjudication that such
remuneration was in violation of law; or (ii) any accounting of profits made
from the purchase or sale by such person of the Corporation's securities within
the meaning of Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any federal, state or local
statutory law; or (iii) actions brought about or contributed to by the
dishonesty of such person, if a final judgment or other final adjudication
adverse to such person establishes that acts of active and deliberate dishonesty
were committed or attempted by such person with actual dishonest purpose and
intent and were material to the adjudication; or (iv) actions based on or
attributable to such person having gained any personal profit or advantage to
which he was not entitled, in the event that a final judgment or other final
adjudication adverse to such person established that such person in fact gained
such personal profit or other advantage to which he was not entitled; or (v) any
matter in respect of which a final decision by a court with competent
jurisdiction shall determine that indemnification is unlawful; provided,
however, that the Corporation shall perform its obligations under the second
sentence of this Section 7.10 on behalf of such person until such time as it
shall be ultimately determined by a final judgment or other final adjudication
that he is not entitled to be indemnified by the Corporation as authorized by
the first sentence of this Section 7.10 by virtue of any of the preceding
clauses (i), (ii), (iii), (iv) or (v).
Section 7.11. TERM. The indemnification and advancement of expenses
provided by, or granted pursuant to, advancement of expenses provided by, or
granted pursuant to, this Article VII shall, unless otherwise provided when
authorized or ratified, continue as t 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 7.12 SEVERABILITY. If any part of this Article VII shall be found,
in any action, suit or proceeding or appeal therefrom or in any other
circumstances or as to any particular officer, director, employee or agent to be
unenforceable,
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ineffective or invalid for any reason, the enforceability, effect and validity
of the remaining parts or of such parts in other circumstances shall not be
affected, except as otherwise required by applicable law.
Section 7.13 AMENDMENTS. The foregoing provisions of this Article VII
shall be deemed to constitute an agreement between the Corporation and each of
the persons entitled to indemnification hereunder, for as long as such
provisions remain in effect. Any amendment to the foregoing provisions of this
Article VII which limits or otherwise adversely affects the scope of
indemnification or rights of any such persons hereunder shall, as to such
persons, apply only to claims arising, or causes of action based on actions or
events occurring, after such amendment and delivery of notice of such amendment
is given to the person or persons so affected. Until notice of such amendment
is given to the person or persons whose rights hereunder are adversely affected,
such amendment shall have no effect on such rights of such persons hereunder.
Any person entitled to indemnification under the foregoing provisions of the
Article VII shall, as to any act or omission occurring prior to the date of
receipt of such notice, be entitled to indemnification to the same extent as had
such provisions continued as Bylaws of the Corporation without such amendment.
ARTICLE VIII
MISCELLANEOUS
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Section 8.01 SEAL. The Board shall provide a corporate seal, which shall
be in the form of a circle and shall bear the name of the Corporation and words
and figures showing that the Corporation was incorporated in the State of
Delaware and showing the year of Incorporation.
Section 8.02 WAIVER OF NOTICES. Whenever notice is required to be given
under any provision of these bylaws, the Certificate of Incorporation or by law,
a written waiver, signed by the person entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent to notice. Attendance
of a person at a meeting shall constitute a waiver of notice of such meeting,
except when a person attends a meeting for the express purpose of objecting at
the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor
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the purpose of, any regular or special meeting of the stockholders, directors,
or members of a committee of directors need be specified in any written waiver
of notice unless required by the Certificate of Incorporation.
Section 8.03 LOANS AND GUARANTIES. The Corporation may lend money to, or
guarantee any obligation of, and otherwise assist any officer or other employee
of the Corporation or of its subsidiaries, including any officer who is a
director, whenever, in the judgment of the Board, such loan, guaranty or
assistance may reasonably be expected to benefit the Corporation. The loan,
guaranty, or other assistance by be with or without interest, and my be
unsecured or secured in such manner as the Board shall approve, including,
without limitation, a pledge of shares of stock of the Corporation.
Section 8.04 GENDER. All personal pronouns used in these Bylaws shall
include the other genders, whether used in the masculine, feminine or neuter
gender, and the singular shall include the plural, and vice versa. Whenever and
as often as may be appropriate.
Section 8.05 AMENDMENTS. These Bylaws, or any of them, may be rescinded,
altered, amended or repealed, and new Bylaws may be made (i) by the Board, by a
vote of a majority of the number of directors then in office as directors,
acting at any meeting of the Board or (ii) by the stockholders, by the vote of a
majority of the outstanding shares of voting stock of the Corporation, at an
annual meeting of stockholders, without previous notice, or at any special
meeting of stockholders, provided that notice of such proposed amendment,
modification, repeal or adoption is given in the notice of special meeting;
provided, however, that Section 2.02 of these Bylaws can only be amended if that
Section as amended would not conflict with the Corporation's Certificate of
Incorporation. Any Bylaw made or altered by the stockholders may be altered or
repealed by the Board or may be altered or repealed by the stockholders.
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