Exhibit 2.2
BY-LAWS
of
JOINUSONLINE.COM, INC.
a Delaware Corporation (the "Corporation")
ARTICLE I - OFFICES
Section 1.1. Location. The address of the registered office of the
Corporation in the State of Delaware and the name of the registered agent at
such address, if any, shall be as specified in the Certificate of Incorporation
or, if subsequently changed, as specified in the most recent certificate of
change filed pursuant to law. The Corporation may also have other offices at
such places within or without the State of Delaware as the Board of Directors
may from time to time designate or the business of the Corporation may require.
Section 1.2. Change of Location. In the manner permitted by law, the
Board of Directors may change the address of the Corporation's registered office
in the State of Delaware and the Board of Directors may make, revoke or change
the designation of the registered agent.
ARTICLE II - STOCKHOLDERS
Section 2.1 Place of Meetings. Meeting of stockholders shall be held
at the principal office of the Corporation or at such place within or without
the State of Delaware as the Board of Directors shall authorize.
Section 2.2 Annual Meeting. The annual meeting of stockholders shall be
held each year on a date and at a time to be selected by the President or the
Board of Directors at least 30 days before such meeting or, in the event the
President or the Board of Directors shall not make such selection at least 30
days prior to the following indicated date, at 10:00 A.M. on the last Friday in
September of each year (if not a legal holiday, and if a legal holiday, then on
the next business day), at such place within or without the State of Delaware as
shall be stated in the notice of meeting. At such meeting, or at any special
meeting in lieu
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of the annual meeting, the stockholders shall elect a Board of Directors and
transact such other business as may properly be brought before the meeting.
The notice of the meeting shall be in writing and signed by the
President or a Vice President or the Secretary or an Assistant Secretary. Such
notice shall state the purpose or purposes for which the meeting is called and
the time when and the place within or without the State where such meeting is to
be held, and a copy thereof shall be served, either personally or by mail upon
each stockholder of record entitled to vote at such meeting, and upon each
stockholder of record, who, by reason of any action proposed at such meeting,
would be entitled to have his stock appraised if such action were taken, not
less than ten or more than fifty days before the meeting. If mailed, it shall be
directed to a stockholder at his address as it appears on the stock book unless
he shall have filed with the Secretary of the Corporation a written request that
notices intended for him be mailed to some other address, in which case it shall
be mailed to the address designated in such request.
Section 2.3 Special Meetings. Special meetings of the stockholders
may be called at any time by the Chairman of the Board, by the President and by
the President or the Secretary at the request in writing of either (a) a
majority of the Board of Directors, or (b) stockholders owning a majority in
amount of the shares issued and outstanding. Such request shall state the
purpose or purposes of the proposed meeting. Business transacted at a special
meeting shall be confined to the purposes stated in the notice.
Section 2.4. List of Stockholders Entitled to Vote. The officer who
has charge of the stock ledger of the Corporation shall prepare and make, or
cause to be prepared and made, at least ten days before every meeting of
stockholders, a complete list, based upon the record date for such meeting
determined pursuant to Section 5.8, of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting or, if such place shall not be so specified, at the place where said
meeting is to be held. The list shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
The stock ledger shall be the only evidence as to who are the
stockholders entitled (i) to examine the stock ledger, the list of stockholders
entitled to vote at any meeting, or the books of the Corporation, or (ii) to
vote in person or by proxy at any
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meeting of stockholders.
Section 2.5. Notice of Meetings. Written notice of each annual and
special meeting of stockholders, other than any meeting the giving of notice of
which is otherwise prescribed by law, stating the place, date and hour of the
meeting, and, in the case of a special meeting, indicating the purpose or
purposes thereof and that it is being issued by or at the direction of the
person or persons calling the meeting, shall be delivered or mailed in writing
at least ten but not more than sixty days before such meeting, to each
stockholder required or permitted to take any action or entitled to vote
thereat. If mailed, such notice shall be deposited in the United States mail,
postage prepaid, directed to such stockholder at his address as the same appears
on the records of the Corporation. An affidavit of the Secretary, an Assistant
Secretary or the transfer agent of the Corporation that notice has been given by
mail shall be evidence of the facts stated therein.
Section 2.6. Adjourned Meetings and Notice Thereof. Any meeting of
stockholders may be adjourned to another time or place, and the Corporation may
transact at any adjourned meeting any business which might have been transacted
at the original meeting. Notice need not be given of the adjourned meeting if
the time and place thereof are announced at the meeting at which the adjournment
is taken, unless (a) any adjournment or series of adjournments cause the
original meeting to be adjourned for more than thirty days after the date
originally fixed therefor, or (b) a new record date is fixed for the adjourned
meeting. If notice of any adjourned meeting is given, such notice shall be given
to each stockholder of record entitled to vote at the adjourned meeting in the
manner prescribed in Section 2.5 for giving of notice of meetings.
Section 2.7. Quorum. At any meeting of stockholders, except as
otherwise expressly required by law, or by the Certificate of Incorporation, the
holders of record of at least a majority of the outstanding Capital Shares
entitled to vote or act at such meetings shall be present or represented by
proxy in order to constitute a quorum for the transaction of any business, but
less than a quorum shall have power to adjourn any meeting unless a quorum shall
be present. When a quorum is once present to organize a meeting, the quorum
cannot be destroyed by the subsequent withdrawal or revocation of the proxy of
any stockholder. Capital shares owned by the Corporation or by another
corporation, if a majority of its shares entitled to vote in the election of
directors is held by the Corporation, shall not be counted for quorum purposes
or entitled to vote.
Section 2.8. Voting. At any meeting of stockholders each stockholder
holding, as of the record date, shares entitled to be voted on any matter at
such meeting shall have one vote on each such matter submitted to vote at such
meeting for each such share held by such stockholder as of the record date as
shown by the list of stockholders
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entitled to vote at the meeting, unless the Certificate of Incorporation
provides for more or less than one vote for any share on any matter, in which
case every reference to a required proportion of shares shall refer to the
proportion of the votes of such shares.
Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for him by proxy, provided that no
proxy shall be voted or acted upon after eleven months from its date, unless the
proxy provides for a longer period. A duly executed proxy shall be irrevocable
if it states that it is irrevocable and if, and only so long as, it is coupled
with an interest, whether in the shares themselves or in the Corporation,
sufficient in law to support an irrevocable power.
Section 2.9 Waivers of Notice of Meetings. Notice of meeting need
not be given to any stockholder who signs a waiver of notice, in person or by
proxy, whether before or after the meeting. The attendance of any stockholder at
a meeting, in person or by proxy, without protesting prior to the conclusion of
the meeting the lack of notice of such meeting, shall constitute a waiver of
notice by him.
Section 2.10. Action by Consent of Stockholders. Unless otherwise
provided in the Certificate of Incorporation, whenever any action by the
stockholders at a meeting thereof is required or permitted by law, the
Certificate of Incorporation, or these By-Laws, such action 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 all the
outstanding shares entitled to vote thereon.
ARTICLE III - BOARD OF DIRECTORS
Section 3.1. General Powers. The property, business and affairs of
the Corporation shall be managed by the Board of Directors. The Board of
Directors may exercise all such powers of the Corporation and have such
authority and do all such lawful acts and things as are permitted by law, the
Certificate of Incorporation or these By-Laws.
Section 3.2. Number of Directors. The Board of Directors of the
Corporation shall consist of at least three and not more than seven members,
provided, however, that when all of the issued and outstanding shares of the
Corporation's capital stock are owned by less than three stockholders, the
number of directors may be less than three but not less than the number of
stockholders. Subject to the foregoing limitations, the number of
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directors constituting the entire Board of Directors, to serve until the next
annual meeting of stockholders, shall be such number as shall be designated by
resolution of the Board of Directors adopted prior to the annual meeting of
stockholders. In the absence of such resolution, the number of directors to be
elected at such annual meeting shall be the number last fixed by the directors.
Section 3.3. Qualification. Directors must be at least eighteen
years of age, but need not be stockholders of the Corporation.
Section 3.4. Election. Except as otherwise provided by law, the
Certificate of Incorporation, or these By-Laws, after the first meeting of the
Corporation at which directors are elected, directors of the Corporation shall
be elected in each year at the annual meeting of stockholders, or at a special
meeting in lieu of the annual meeting called for such purpose, by a plurality of
votes cast at such meeting. The voting on directors at any such meeting need not
be written ballot.
Section 3.5. Term. Each director shall hold office until the
expiration of the term for which he is elected and until his successor has been
elected and qualified, or until his prior resignation or removal.
Section 3.6. Resignation and Removal. Any director may resign at any
time upon written notice to the Board of Directors, the President or the
Secretary. The resignation of any director shall take effect upon receipt of
notice thereof or at such later time as shall be specified in such notice, and
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective. Any or all of the directors may be removed
for cause by vote of the stockholders or by action of the Board of Directors.
Directors may be removed without cause only by vote of the stockholders.
Section 3.7. Vacancies. Vacancies in the Board of Directors (unless
the vacancy be caused by the removal of a director without cause) and newly
created directorships resulting from any increase in the authorized number of
directors shall be filled by a majority of the directors then in office, though
less than a quorum, or by a sole remaining director. A vacancy caused by the
removal of a director without cause shall be filled by a vote of the holders of
a majority of the shares entitled to vote for the election of directors.
If one or more directors shall resign from the Board of Directors
effective at
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a future date, a majority of the directors then in office, including those who
have so resigned at a future date, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect and the vacancy to be filled when
such resignation or resignations shall become effective, and each director so
chosen shall hold office as provided in this section for the filling of other
vacancies.
Each director chosen to fill a vacancy on the Board of Directors
shall hold office until the next annual election of directors and until his
successor shall be elected and qualified.
Section 3.8. Quorum and Voting. Unless the Certificate of
Incorporation provides otherwise, at all meetings of the Board of Directors a
majority of the total number of directors (but not less than one-third of the
total number of directors) shall be present to constitute a quorum for the
transaction of business. A director interested in a contract or transaction may
be counted in determining the presence of a quorum at a meeting of the Board of
Directors which authorizes the contract or transaction. In the absence of a
quorum, a majority of the directors present may adjourn the meeting until a
quorum shall be present.
Unless the Certificate of Incorporation provides otherwise, members
of the Board of Directors or any committee designated by the Board of Directors
may participate in a meeting of the Board of Directors or such committee by
means of conference telephone or similar communications equipment allowing all
persons participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at such meeting
for all purposes.
The vote of a majority of the directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors unless the
Certificate of Incorporation or these By-Laws shall require a vote of a greater
number.
Section 3.9. Regulations. The Board of Directors may adopt such
rules and regulations for the conduct of the business and management of the
Corporation, not inconsistent with law or the Certificate of Incorporation or
these By-Laws, as the Board of Directors may deem proper. The Board of Directors
may hold its meetings and cause the books and records of the Corporation to be
kept at such place or places within or without the State of Delaware as the
Board of Directors may from time to time determine. The Corporation shall keep
at its registered office in the State of Delaware a record containing the names
and addresses of all stockholders of the Corporation, the number and class of
shares held by each stockholder, and the dates when they respectively became the
owners of record. A member of the Board of Directors shall, in the performance
of his duties, be
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fully protected in relying in good faith upon the books of account or reports
made to the Corporation by any of its officers, by an independent certified
public accountant, or by an appraiser selected with reasonable care by the Board
of Directors or any committee of the Board of Directors or in relying in good
faith upon other records of the Corporation.
Section 3.10. Annual Meeting of Board of Directors. An annual
meeting of the Board of Directors shall be called and held for the purpose of
organization, election of officers and transaction of any other business. If
such meeting is held promptly after and at the place specified for the annual
meeting of stockholders, no notice of the annual meeting of the Board of
Directors need by given. Otherwise such annual meeting shall be held at such
time (not more than thirty days after the annual meeting of stockholders) and
place as may be specified in a notice of the meeting.
Section 3.11. Regular Meetings. Regular meetings of the Board of
Directors shall be held at the time and place, within or without the State of
Delaware, as shall from time to time be determined by the Board of Directors.
After there has been such determination and notice thereof has been given to
each member of the Board of Directors, no further notice shall be required for
any such regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
Section 3.12. Special Meetings. Special meetings of the Board of
Directors may, unless otherwise prescribed by law, be called from time to time
by the Chairman of the Board or the President, and shall be called by the
President or Secretary upon the written request of a majority of the whole Board
of Directors directed to the President or the Secretary. Except as provided
below, notice of any special meeting of the Board of Directors, stating the time
when and place where such special meeting shall be held, shall be given to each
director.
Section 3.13. Notice of Meetings. Notice of any meeting of the Board
of Directors shall be deemed to be duly given to a director (i) if mailed to
such director, addressed to him at his address as it appears upon the books of
the Corporation, or at the address last made known in writing to the Corporation
by such director as the address to which such notices are to be sent, at least
two days before the day on which such special meeting is to be held, or (ii) if
sent to him at such address by telegram, mailgram, cable, overnight courier,
e.g., Federal Express, radio or wireless not later than the day before the day
on which such meeting is to be held, or (iii) if delivered to him personally or
orally, by telephone or otherwise, not later than the day before the day on
which such special meeting is to be held. Each notice shall state the time and
place of the meeting.
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Section 3.14. Committees of Directors. The Board of Directors may,
by resolution or resolutions passed by a majority of the whole Board of
Directors, designate one or more committees, each committee to consist of three
or more of the directors of the Corporation.
Except as herein provided, vacancies in membership of any committee
shall be filled by the vote of a majority of the whole Board of Directors. The
Board of Directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting
of the committee. In the absence or disqualification of any member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Members of a
committee shall hold office for such period as may be fixed by a resolution
adopted by a majority of the whole Board of Directors, subject, however, to
removal at any time, with or without cause, by the vote of a majority of the
whole Board of Directors.
Section 3.15. Powers and Duties of Committees. Any committee, to the
extent provided in the resolution or resolutions creating such committee, shall
have and may exercise the powers of the Board of Directors in the management of
the business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it. No such committee
shall have any power or authority with regard to (a) any action that requires
stockholder approval, (b) filling of vacancies in the Board of Directors or in
any committee, (c) fixing of compensation of the directors for serving on the
Board or on any committee, (d) amending or repealing the By-Laws of the
Corporation, or adopting new By-Laws, and (e) amending or repealing any
resolution, which by its terms is not amendable or repealable. The Board of
Directors, by specific resolution, may grant to such committee the power and
authority to declare a dividend or authorize the issuance of stock.
Each committee may adopt its own rules of procedure and may meet at
stated times or on such notice as such committee may determine. Except as
otherwise permitted by these By-Laws, each committee shall keep regular minutes
of its proceedings and report the same to the Board of Directors when required.
Section 3.16. Compensation of Directors. The Board of Directors may
from time to time, in its discretion, fix the amounts which shall be payable to
directors and to members of any committee of the Board of Directors for
attendance at the meetings of the Board of Directors or of such committee and
for services rendered to the Corporation.
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Section 3.17. Action Without Meeting. Unless otherwise restricted by
the Certificate of Incorporation, any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting if a written consent thereto is signed by all members of
the Board of Directors or of such committee, as the case may be, and such
written consent is filed with the minutes of proceedings of the Board of
Directors or such committee.
ARTICLE IV - OFFICERS
Section 4.1 Principal Officers. The principal officers of the
Corporation shall be elected by the Board of Directors and shall include a
President, a Secretary and a Treasurer and may, at the discretion of the Board
of Directors, also include one or more Vice Presidents, and a Controller. Except
as otherwise provided in the Certificate of Incorporation or these By-Laws, one
person may hold the offices and perform the duties of any two or more of said
principal offices except the offices and duties of President and Vice President
or of the President and Secretary.
Section 4.1 Election of Principal Officers; Term of Office. The
principal officers of the Corporation shall be elected annually by the Board of
Directors at each annual meeting of the Board of Directors. Failure to elect any
principal officer annually shall not result in or constitute grounds for the
dissolution of the Corporation.
If the Board of Directors shall fail to fill any principal office at
an annual meeting, or if any vacancy in any principal office shall occur, or if
any principal office shall be newly created, such principal office may be filled
at any regular or special meeting of the Board of Directors.
Each principal officer shall hold office for the term for which he
is elected and until his successor is duly elected or appointed, and qualified,
or until his earlier death, resignation or removal.
Section 4.3. Subordinate Officers, Agents and Employees. In addition
to the principal officers, the Corporation may have one or more Assistant
Treasurers, Assistant Secretaries and such other subordinate officers, agents
and employees as the Board of Directors may deem advisable, each of whom shall
hold office for such period and have such authority and perform such duties as
the Board of Directors, the Chairman of the Board, the President, or any officer
designated by the Board of Directors, may from time to time determine. The Board
of Directors at any time may appoint and remove, or may
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delegate to any principal officer the power to appoint and remove, any
subordinate officer, agent or employee of the Corporation.
Section 4.4. Delegation of Duties of Officers. The Board of
Directors may delegate the duties and powers of any officer of the Corporation
to any other officer or to any director for a specified period of time for any
reason that the Board of Directors may deem sufficient.
Section 4.5. Removal of Officers. Any officer of the Corporation may
be removed with or without cause by resolution adopted by a majority of the
directors then in office at any regular or special meeting of the Board of
Directors or by a written consent signed by all of the directors then in office.
Section 4.6. Resignations. Any officer may resign at any time by
giving written notice of resignation to the Board of Directors, to the President
or to the Secretary. Any such resignation shall take effect upon receipt of such
notice or at any later time specified in such notice. Unless otherwise specified
in the notice, the acceptance of a resignation shall not be necessary to make
the resignation effective.
Section 4.7. President. The President shall be the chief executive
of the Corporation and shall be responsible for implementing and executing the
plans and policies of the Corporation, as established from time to time by the
Board of Directors. In the absence of the Board's appointment of a different
person to serve as chief operating officer, the President shall also serve the
Corporation in such capacity, and shall be responsible for executing the plans
and policies of the Corporation, as established from time to time by the Board
of Directors. The President shall have all powers and duties usually incident to
the office of the President except as specifically limited by a resolution of
the Board of Directors. The President shall have such other powers and perform
such other duties as may be assigned to him from time to time by the Board of
Directors.
Section 4.8. Vice President. In the absence or disability of the
President or if the office of the President be vacant, the Vice Presidents in
the order determined by the Board of Directors, or if no such determination has
been made in the order of their seniority, shall perform the duties and exercise
the powers of the President, subject to the right of the Board of Directors at
any time to extend or confine such powers and duties or to assign them to
others. Any Vice President may have such additional designation in his title as
the Board of Directors may determine. The Vice Presidents shall generally assist
the President in such manner as the President shall direct. Each Vice President
shall have such
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other powers and perform such other duties as may be assigned to him from time
to time by the Board of Directors or the President.
Section 4.9. Secretary. The Secretary shall act as Secretary of all
meetings of stockholders and of the Board of Directors at which he is present,
shall record all the proceedings of all such meetings in a book to be kept for
that purpose, shall have supervision over the giving and service of notices of
the Corporation, and shall have supervision over the care and custody of the
corporate records and the corporate seal of the Corporation. The Secretary shall
be empowered to affix the corporate seal to documents, the execution of which on
behalf of the Corporation under its seal, is duly authorized, and when so
affixed may attest the same. The Secretary shall have all powers and duties
usually incident to the office of Secretary, except as specifically limited by a
resolution of the Board of Directors or the President.
Section 4.10. Treasurer. The Treasurer shall have general
supervision over the care and custody of the funds and over the receipts and
disbursements of the Corporation and shall cause the funds of the Corporation to
be deposited in the name of the Corporation in such banks or other depositories
as the Board of Directors may designate. The Treasurer shall have supervision
over the care and safekeeping of the securities of the Corporation. The
Treasurer shall have all powers and duties usually incident to the office of the
Treasurer except as specifically limited by a resolution of the Board of
Directors. The Treasurer shall have other powers and perform such other duties
as may be assigned to him from time to time by the Board of Directors or the
President.
Section 4.11. Controller. The Controller shall be the chief
accounting officer of the Corporation and shall have supervision over the
maintenance and custody of the accounting operations of the Corporation,
including the keeping of accurate accounts of all receipts and disbursements and
all other financial transactions. The Controller shall have all powers and
duties usually incident to the office of the Controller except as specifically
limited by a resolution of the Board of Directors. The Controller shall have
other powers and perform such other duties as may be assigned to him from time
to time by the Board of Directors or the President.
Section 4.12. Bond. The Board of Directors shall have power, to the
extent permitted by law, to require any officer, agent or employee of the
Corporation to give bond for the faithful discharge of his duties in such form
and with such surety or sureties as the Board of Directors may determine.
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ARTICLE V - CAPITAL SHARES
Section 5.1. Issuance of Certificates for Shares. Each stockholder
of the Corporation shall be entitled to a certificate or certificates in such
form as is prescribed by law and as shall be approved by the Board of Directors,
certifying the number of capital shares of the Corporation owned by such
stockholder.
Section 5.2. Signatures on Share Certificates. Certificates for
capital shares of the Corporation shall be signed by, or in the name of the
Corporation by, the Chairman of the Board, the President or a Vice President and
by the Secretary, the Treasurer, an Assistant Secretary or an Assistant
Treasurer and shall bear the corporate seal of the Corporation or a printed or
engraved facsimile thereof.
If any such certificates are countersigned by a transfer agent other
than the Corporation or its employee, or by a registrar other than the
Corporation or its employee, any other signature on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, such certificate may be issued by the Corporation with the same effect
as if such signer were such officer, transfer agent or registrar at the date of
issue.
Section 5.3. Stock Ledger. A record of all certificates for capital
shares issued by the Corporation shall be kept by the Secretary or any other
officer, employee or agent designated by the Board of Directors. Such record
shall show the name and address of the person, firm or corporation in which
certificates for capital shares are registered, the number of shares represented
by each such certificate, the date of each such certificate, and in case of
certificates which have been cancelled, the date of cancellation thereof.
The Corporation shall be entitled to treat the holder of record of
capital shares as shown on the stock ledger as the owner thereof and as the
person entitled to receive dividends thereon, to vote such shares and to receive
notice of meetings, and for all other purposes. The Corporation shall not be
bound to recognize any equitable or other claim to or interest in any capital
share on the part of any other person whether or not the Corporation shall have
express or other notice thereof.
Section 5.4. Regulations Relating to Transfer. The Board of
Directors may make such rules and regulations as it may deem expedient, not
inconsistent with law, the Certificate of Incorporation or these By-Laws,
concerning issuance, transfer and registration
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of certificates for capital shares of the Corporation. The Board of Directors
may appoint, or authorize any principal officer to appoint, one or more transfer
clerks or one or more transfer agents and one or more registrars and may require
all certificates for capital shares to bear the signature or signatures of any
of them.
Section 5.5. Transfers. Transfer of capital shares shall be made on
the books of the Corporation only upon delivery to the Corporation or its
transfer agent of (i) a written direction of the registered holder named in the
certificate or such holder's attorney lawfully constituted in writing, (ii) the
certificate for the capital shares being transferred, and (iii) a written
assignment of the capital shares evidenced thereby.
Section 5.6. Cancellation. Each certificate for capital shares
surrendered to the Corporation for exchange or transfer shall be cancelled and
no new certificate or certificates shall be issued in exchange for any existing
certificate (other than pursuant to Section 5.7) until such existing certificate
shall have been cancelled.
Section 5.7. Lost, Destroyed, Stolen, and Mutilated Certificates. In
the event that any certificate for capital shares of the Corporation shall be
mutilated the Corporation shall issue a new certificate in place of such
mutilated certificate. In case any such certificate shall be lost, stolen, or
destroyed the Corporation may, in the discretion of the Board of Directors or a
committee designated thereby with power so to act, issue a new certificate for
capital shares in the place of any such lost, stolen or destroyed certificate.
The applicant for any substituted certificate or certificates shall surrender
any mutilated certificate or, in the case of any lost, stolen or destroyed
certificate, furnish satisfactory proof of such loss, theft or destruction of
such certificate and of the ownership thereof. The Board of Directors or such
committee may, in its discretion, require the owner of a lost, stolen or
destroyed certificate, or his representatives, to furnish to the Corporation a
bond with an acceptable surety or sureties and in such sum as will be sufficient
to indemnify the Corporation against any claim that may be made against it on
account of the lost, stolen or destroyed certificate or the issuance of such new
certificate. A new certificate may be issued without requiring a bond when, in
the judgment of the Board of Directors, it is proper to do so.
Section 5.8. Fixing of Record Dates. (a) The Board of Directors may
fix, in advance, a record date, which shall not be more than sixty nor less than
ten days before the date of any meeting of stockholders, nor more than sixty
days prior to any other action, for the purpose of determining stockholders
entitled to notice of or to vote at such meeting of stockholders or any
adjournment thereof, or to express consent or dissent to corporate
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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 shares or for the purpose of
any other lawful action.
(b) If no record date is fixed by the Board of Directors:
(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 date 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 for any
other purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution or consents to the action relating thereto.
(c) 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 that the Board of Directors may fix a new record date for the
adjourned meeting.
ARTICLE VI - DIVIDENDS
Subject to the provisions of the certificate of incorporation and to
applicable law, dividends on the outstanding shares of the Corporation may be
declared in such amounts and at such time or times as the Board of Directors may
determine.Before payment of any dividend, there may be set aside out of the net
profits of the Corporation available for dividends such sum or sums as the Board
of Directors from time to time in its absolute discretion deems proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the Board of Directors shall think conducive to the interests of the
Corporation, and the Board of Directors may modify or abolish any such reserve.
ARTICLE VII - INDEMNIFICATION
Section 7.1. Indemnification of Directors, Officers and Employees.
The Corporation shall indemnify to the full extent authorized by law any person
made or threatened to be made a party to any action, suit or proceeding, whether
criminal, civil, administrative or investigative, by reason of the fact that
such person or such person's testator or intestate is or was a director, officer
or employee of the Corporation or serves or served at the request of the
Corporation any other enterprise as a director, officer or
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employee. For purposes of this By-law, the term "other enterprise" shall include
any corporation, partnership, joint venture, trust or employee benefit plan;
service "at the request of the Corporation" shall include service as a director,
officer or employee of the Corporation which imposes duties on, or involves
services by, such director, officer or employee with respect to an employee
benefit plan, its participants or beneficiaries; any excise taxes assessed on a
person with respect to an employee benefit plan shall be deemed to be
indemnifyable expenses; and action by a person with respect to an employee
benefit plan which such person reasonably believes to be in the interest of the
participants and beneficiaries of such plan shall be deemed to be action not
opposed to the best interests of the Corporation.
Section 7.2 Advance Payments. 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 of Directors in the specific case upon
receipt of an undertaking by or on behalf of such director or officer to repay
such amount unless it shall ultimately be determined that he is entitled to be
indemnified by the 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 of Directors deems appropriate.
Section 7.3 Non-Exclusivity. The indemnification provided by this
Article VII shall not be deemed exclusive of any rights to which those seeking
indemnification may be entitled under any By-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
Section 7.4 Reliance on Provisions. Each person who shall act as a
director, officer, employee or agent of the Corporation shall be deemed to be
doing so in reliance upon the rights of indemnification provided by this Article
VII.
ARTICLE VIII - MISCELLANEOUS PROVISIONS
Section 8.1. Corporate Seal. The Corporation's seal shall be
inscribed with the name of the Corporation, the year of its incorporation, and
the words "Delaware." The seal may be used by causing it or a facsimile to be
impressed or reproduced on a document or instrument, or affixed to a document or
instrument.
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Section 8.2. Fiscal Year. The fiscal year of the Corporation shall
begin on the first day of January of each year.
Section 8.3. Waiver of Notice. Whenever any notice is required to be
given under any provision of law, the Certificate of Incorporation, or these
By-Laws, a written waiver thereof, signed by the person or persons entitled to
such notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the stockholders, directors, or members of
a committee of directors need be specified in any written waiver of notice
unless so required by the Certificate of Incorporation.
Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
Section 8.4. Execution of Instruments, Contracts, etc. All checks,
drafts, bills of exchange, notes or other obligations or orders for the payment
of money shall be signed in the name of the Corporation by such officer or
officers or person or persons, as the Board of Directors may from time to time
designate.
Except as otherwise provided by law, the Board of Directors, any
committee given specific authority in the premises by the Board of Directors, or
any committee given authority to exercise generally the powers of the Board of
Directors during the intervals between meetings of the Board of Directors, may
authorize any officer, employee or agent, in the name of and on behalf of the
Corporation, to enter into or execute and deliver deeds, bonds, mortgages,
contracts and other obligations or instruments, and such authority may be
general or confined to specific instances.
All applications, written instruments and papers required by any
department of the United States Government or by any state, county, municipal or
other governmental authority, may be executed in the name of the Corporation by
any principal officer or subordinate officer of the Corporation, or, to the
extent designated for such purpose from time to time by the Board of Directors,
by an employee or agent of the Corporation. Such designation may contain the
power to substitute, in the discretion of the person named, one or more other
persons.
ARTICLE IX - AMENDMENTS
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Section 9.1. By Stockholders. These By-Laws may be altered, amended,
repealed or added to, or new By-Laws may be adopted by the affirmative vote of
the holders of not less than a majority of the outstanding shares entitled to
vote for the election of any director at an annual meeting or at a special
meeting called for that purpose, provided, however, that a written notice shall
have been sent to each stockholder of record entitled to vote at such meeting,
in conformity with the requisites of Section 2.5 hereof, which notice shall
state the alterations, amendments, additions or changes which are proposed to be
made in such By-Laws.
Section 9.2. By Directors. To the extent permitted by the
Certificate of Incorporation, these By-Laws may be amended, added to, altered or
repealed, or new By-laws may be adopted at any regular or special meeting of the
Board of Directors by a resolution adopted by affirmative vote of a majority of
the whole Board of Directors; provided, however, that:
(a) any By-law adopted by the Board of Directors may be
altered, amended or repealed by majority vote of the stockholders entitled to
vote for the election of directors; and
(b) if any By-law regulating an impending election of
directors is adopted, amended or repealed by the Board of Directors, there shall
be set forth in the notice of the next meeting of stockholders for the election
of directors the by-law so adopted, amended or repealed, together with a concise
statement of the changes made.
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