BY-LAWS
OF INFOACTIV, INC.
ARTICLE I Stockholders
SECTION 1. Annual Meeting. The annual meeting of the stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as may be designated by the Board of Directors,
for the purpose of electing Directors and for the transaction of such other
business as may be properly brought before the meeting.
SECTION 2. Special Meetings. Except as otherwise provided in the Certificate of
Incorporation, a special meeting of the stockholders of the Corporation may be
called at any time by the Board of Directors or the Chairman and shall be called
by the Chairman or the Secretary at the request in writing of stockholders
holding together at least twenty-five percent (25%) of the number of shares of
stock outstanding and entitled to vote at such meeting. Any special meeting of
the stockholders shall be held on such date, at such time and at such place
within or without the State of Delaware as the Board of Directors or the officer
calling the meeting may designate. At a special meeting of the stockholders, no
business shall be transacted and no corporate action shall be taken other than
that stated in the notice of the meeting unless all of the stockholders are
present in person or by proxy, in which case any and all business may be
transacted at the meeting even though the meeting is held without notice.
SECTION 3. Notice of Meetings. Except as otherwise provided in these By-Laws or
by law, a written notice of each meeting of the stockholders shall be given not
less than ten (10) nor more than sixty (60) days before the date of the meeting
to each stockholder of the Corporation entitled to vote at such meeting at his
address as it appears on the records of the Corporation. The notice shall state
the place, date and hour of the meeting and, in the case of a special meeting,
the purpose or purposes for which the meeting is called.
SECTION 4. Quorum. At any meeting of the stockholders, the holders of a majority
in number of the total outstanding shares of stock of the Corporation entitled
to vote at such meeting, present in person or represented by proxy, shall
constitute a quorum of the stockholders for all purposes, unless the
representation of a larger number of shares shall be required by law, by the
Certificate of Incorporation or by these By-Laws, in which case the
representation of the number of shares so required shall constitute a quorum;
provided that at any meeting of the stockholders at which the holders of any
class of stock of the Corporation shall be entitled to vote separately as a
class, the holders of a majority in number of the total outstanding shares of
such class, present in person or represented by proxy, shall constitute a quorum
for purposes of such class vote unless the representation of a larger number of
shares of such class shall be required by law, by the Certificate of
Incorporation or by these By-Laws.
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SECTION 5. Adjourned Meetings. Whether or not a quorum shall be present in
person or represented at any meeting of the stockholders, the holders of a
majority in number of the shares of stock of the Corporation present in person
or represented by proxy and entitled to vote at such meeting may adjourn from
time to time; provided, however, that if the holders of any class of stock of
the Corporation are entitled to vote separately as a class upon any matter at
such meeting, any adjournment of the meeting in respect of action by such class
upon such matter shall be determined by the holders of a majority of the shares
of such class present in person or represented by proxy and entitled to vote at
such meeting. When a meeting is adjourned to another time or place, 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. At the adjourned
meeting the stockholders, or the holders of any class of stock entitled to vote
separately as a class, as the case may be, may transact any business which might
have been transacted by them at the original meeting. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the adjourned meeting.
SECTION 6. Organization. The Chairman or, in his absence, a Vice Chairman or
President shall call all meetings of the stockholders to order, and shall act as
Chairman of such meetings. In the absence of the Chairman, the President and all
of the Vice Chairmen, the holders of a majority in number of the shares of stock
of the Corporation present in person or represented by proxy and entitled to
vote at such meeting shall elect a Chairman. The Secretary of the Corporation
shall act as Secretary of all meetings of the stockholders; but in the absence
of the Secretary, the Chairman may appoint any person to act as Secretary of the
meeting. It shall be the duty of the Secretary to prepare and make, at least ten
(10) days before every meeting of stockholders, a complete list of stockholders
entitled to vote at such 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, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting or, if not so specified, at the place where the meeting is to be
held, for the ten (10) days next preceding the meeting, to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, and shall be produced and kept at the time and place of the
meeting during the whole time thereof and subject to the inspection of any
stockholder who may be present.
SECTION 7. Voting. Except as otherwise provided in the Certificate of
Incorporation or by law, each stockholder shall be entitled to one vote for each
share of the capital stock of the Corporation registered in the name of such
stockholder upon the books of the Corporation. 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, but no such proxy shall be voted or acted upon after three
(3) years from its date, unless the proxy provides for a longer period. When
directed by the presiding officer or upon the demand of any stockholder, the
vote upon any matter before a meeting of stockholders shall be by ballot. Except
as otherwise provided by law or by the Certificate of Incorporation, Directors
shall be elected by a plurality of
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the votes cast at a meeting of stockholders by the stockholders entitled to vote
in the election and, whenever any corporate action, other than the election of
Directors is to be taken, it shall be authorized by a majority of the votes cast
at a meeting of stockholders by the stockholders entitled to vote thereon.
Shares of the capital stock of the Corporation belonging to the Corporation or
to another corporation, if a majority of the shares entitled to vote in the
election of directors of such other corporation is held, directly or indirectly,
by the Corporation, shall neither be entitled to vote nor be counted for quorum
purposes.
SECTION 8. Inspectors. When required by law or directed by the presiding officer
or upon the demand of any stockholder entitled to vote, but not otherwise, the
polls shall be opened and closed, the proxies and ballots shall be received and
taken in charge, and all questions touching the qualification of voters, the
validity of proxies and the acceptance or rejection of votes shall be decided at
any meeting of the stockholders by two (2) or more Inspectors who may be
appointed by the Board of Directors before the meeting, or if not so appointed,
shall be appointed by the presiding officer at the meeting. If any person so
appointed fails to appear or act, the vacancy may be filled by appointment in
like manner.
SECTION 9. Consent of Stockholders in Lieu of Meeting. Unless otherwise provided
in the Certificate of Incorporation, any action required to be taken or which
may be taken at any annual or special meeting of the stockholders of the
Corporation, may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize 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 any such corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE II Board of Directors
SECTION 1. Number and Term of Office. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors,
none of whom need be stockholders of the Corporation. The number of Directors
constituting the Board of Directors shall be fixed from time to time by
resolution passed by a majority of the Board of Directors. The Directors shall,
except as hereinafter otherwise provided for filling vacancies, be elected at
the annual meeting of stockholders, and shall hold office until their respective
successors are elected and qualified or until their earlier resignation or
removal.
SECTION 2. Removal, Vacancies and Additional Directors. The stockholders may, at
any special meeting the notice of which shall state that it is called for that
purpose, remove, with or without cause, any Director and fill the vacancy;
provided that whenever any Director shall have been elected by the holders of
any class of stock of the Corporation voting separately as a class under the
provisions of the Certificate of Incorporation, such Director may be removed and
the vacancy filled only by the holders of that class of stock voting separately
as a class. Vacancies caused by any such
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removal and not filled by the stockholders at the meeting at which such removal
shall have been made, or any vacancy caused by the death or resignation of any
Director or for any other reason, and any newly created directorship resulting
from any increase in the authorized number of Directors, may be filled by the
affirmative vote of a majority of the Directors then in office, although less
than a quorum, and any Director so elected to fill, any such vacancy or newly
created directorship shall hold office until his successor is elected and
qualified or until his earlier resignation or removal. When one or more
Directors shall resign effective at a future date, a majority of the Directors
then in office, including those who have so resigned, shall have 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 herein provided in connection with the filling of other vacancies.
SECTION 3. Place of Meeting. The Board of Directors may hold its meetings in
such place or places in the State of Delaware or outside the State of Delaware
as the Board from time to time shall determine.
SECTION 4. Regular Meetings. Regular meetings of the Board of Directors shall be
held at such times and places as the Board from time to time by resolution shall
determine. No notice shall be required for any regular meeting of the Board of
Directors; but a copy of every resolution fixing or changing the time or place
of regular meetings shall be mailed to every Director at least five (5) days
before the first meeting held in pursuance thereof.
SECTION 5. Special Meetings. Special meetings of the Board of Directors shall be
held whenever called by direction of the Chairman, or by any two (2) of the
Directors then in office. Notice of the day, hour and place of holding of each
special meeting shall be given by mailing the same at least two (2) days before
the meeting or by causing the same to be transmitted by telecopy, cable or
wireless at least one day before the meeting to each Director. Unless otherwise
indicated in the notice thereof, any and all business other than an amendment of
these By-Laws may be transacted at any special meeting, and an amendment of
these By-Laws may be acted upon if the notice of the meeting shall have stated
that the amendment of these By-Laws is one of the purposes of the meeting. At
any meeting at which every Director shall be present, even though without any
notice, any business may be transacted, including the amendment of these
By-Laws.
SECTION 6. Quorum. Subject to the provisions of Section 2 of this Article II, a
majority of the members of the Board of Directors in office (but in no case less
than one-third of the total number of Directors nor less than two (2) Directors)
shall constitute a quorum for the transaction of business and the vote of the
majority of the Directors present at any meeting of the Board of Directors at
which a quorum is present shall be the act of the Board of Directors. If at any
meeting of the Board there is less than a quorum present, a majority of those
present may adjourn the meeting from time to time.
SECTION 7. Organization. The Chairman shall preside at all meetings of the Board
of Directors. In the absence of the Chairman, a Chairman shall be elected from
the Directors present. The
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Secretary of the Corporation shall act as Secretary of all meetings of the
Directors; but in the absence of the Secretary, the Chairman may appoint any
person to act as Secretary of the meeting.
SECTION 8. Committees. The Board of Directors 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 may
designate one or more Directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In
the absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided by resolution
passed by a majority of the whole Board, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and the affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers that may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending these By-Laws; and unless such resolution, these By-laws, or the
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock.
SECTION 9. Conference Telephone Meetings. Unless otherwise restricted by the
Certificate of Incorporation or by these By-Laws, the members of the Board of
Directors or any committee designated by the Board, may participate in a meeting
of the Board or such committee, as the case may be, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation shall
constitute presence in person at such meeting.
SECTION 10. Consent of Directors or Committee in Lieu of Meeting. Unless
otherwise restricted by the Certificate of Incorporation or by these By-Laws,
any action required or permitted to be taken at any meeting of the Board of
Directors, or of any committee thereof, may be taken without a meeting if all
members of the Board or committee, as the case may be, consent thereto in
writing and the writing or writings are filed with the minutes of proceedings of
the Board or committee, as the case may be.
ARTICLE III Officers
SECTION 1. Officers. The officers of the Corporation may be a Chairman, one or
more Vice Chairmen, a President, a Secretary and a Treasurer, and such
additional officers, if any, as shall be elected by the Board of Directors
pursuant to the provisions of Section 6 of this Article III. The Chairman, one
or more Vice Chairmen, the President, the Secretary and the Treasurer shall be
elected by the Board of Directors at its first meeting after each annual meeting
of the stockholders.
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The failure to hold such election shall not of itself terminate the term of
office of any officer. All officers shall hold office at the pleasure of the
Board of Directors. Any officer may resign at any time upon written notice to
the Corporation. Officers may, but need not, be Directors. Any number of offices
may be held by the same person. All officers, agents and employees shall be
subject to removal, with or without cause, at any time by the Board of
Directors. The removal of an officer without cause shall be without prejudice to
his contract rights, if any. The election or appointment of an officer shall not
of itself create contract rights. All agents and employees other than officers
elected by the Board of Directors shall also be subject to removal, with or
without cause, at any time by the officers appointing them. Any vacancy caused
by the death of any officer, his resignation, his removal, or otherwise, may be
filled by the Board of Directors, and any officer so elected shall hold office
at the pleasure of the Board of Directors. In addition to the powers and duties
of the officers of the Corporation as set forth in these By-Laws, the officers
shall have such authority and shall perform such duties as from time to time may
be determined by the Board of Directors.
SECTION 2. Powers and Duties of the Chairman. The Chairman shall be the chief
executive officer of the Corporation, unless another individual is appointed to
serve as Chief Executive Officer, and, subject to the control of the Board of
Directors, shall have general charge and control of all its business and affairs
and shall have all powers and shall perform all duties incident to the office of
Chairman. He shall preside at all meetings of the stockholders and at all
meetings of the Board of Directors and shall have such other powers and perform
such other duties as may from time to time be assigned to him by these By-Laws
or by the Board of Directors.
SECTION 3. Powers and Duties of the President and Vice Chairmen. Each Vice
Chairman or President shall have all powers and shall perform all duties
incident to the office of Vice Chairman or President and shall have such other
powers and perform such other duties as may from time to time be assigned to him
by these By - Laws or by the Board of Directors or the Chairman.
SECTION 4. Powers and Duties of the Secretary. The Secretary shall keep the
minutes of all meetings of the Board of Directors and the minutes of all
meetings of the stockholders in books provided for that purpose; he shall attend
to the giving or serving of all notices of the Corporation; he shall have
custody of the corporate seal of the Corporation and shall affix the same to
such documents and other papers as the Board of Directors or the Chairman shall
authorize and direct; he shall have charge of the stock certificate books,
transfer books and stock ledgers and such other books and papers as the Board of
Directors or the Chairman shall direct, all of which shall at all reasonable
times be open to the examination of any Director, upon application, at the
office of the Corporation during business hours; and he shall have all powers
and shall perform all duties incident to the office of Secretary and shall also
have such other powers and shall perform such other duties as may from time to
time be assigned to him by these By-Laws or by the Board of Directors or the
Chairman.
SECTION 5. Powers and Duties of the Treasurer. The Treasurer shall have custody
of, and when proper shall pay out, disburse or otherwise dispose of, all funds
and securities of the Corporation that may have come into his hands; he may
endorse on behalf of the Corporation for collection checks,
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notes and other obligations and shall deposit the same to the credit of the
Corporation in such bank or banks or depositary or depositories as the Board of
Directors may designate; he shall sign all receipts and vouchers for payments
made to the Corporation; he shall enter or cause to be entered regularly in the
books of the Corporation kept for such purpose full and accurate accounts of all
moneys received or paid or otherwise disposed of by him and whenever required by
the Board of Directors or the Chairman shall render statements of such accounts;
he shall, at all reasonable times, exhibit his books and accounts to any
Director of the Corporation upon application at the office of the Corporation
during business hours; and he shall have all powers and shall perform all duties
incident of the office of Treasurer and shall also have such other powers and
shall perform such other duties as may from time to time be assigned to him by
these By-Laws or by the Board of Directors or the Chairman.
SECTION 6. Additional Officers. The Board of Directors may from time to time
elect such other officers (who may but need not be Directors), including a
Controller, Assistant Treasurers, Assistant Secretaries and Assistant
Controllers, as the Board may deem advisable and such officers shall have such
authority and shall perform such duties as may from time to time be assigned to
them by the Board of Directors or the Chairman. The Board of Directors may from
time to time by resolution delegate to any Assistant Treasurer or Assistant
Treasurers any of the powers or duties herein assigned to the Treasurer; and,
may similarly delegate to any Assistant Secretary or Assistant Secretaries any
of the powers or duties herein assigned to the Secretary. SECTION 7. Giving of
Bond by Officers. All officers of the Corporation, if required to do so by the
Board of Directors, shall furnish bonds to the Corporation for the faithful
performance of their duties, in such penalties and with such conditions and
security as the Board shall require.
SECTION 8. Voting Upon Stocks. Unless otherwise ordered by the Board of
Directors, the Chairman or any Vice Chairman or President shall have full power
and authority on behalf of the Corporation to attend and to act and to vote, or
in the name of the Corporation to execute proxies to vote, at any meeting of
stockholders of any corporation in which the Corporation may hold stock, and at
any such meeting shall possess and may exercise, in person or by proxy, any and
all rights, powers and privileges incident to the ownership of such stock. The
Board of Directors may from time to time, by resolution, confer like powers upon
any other person or persons.
SECTION 9. Compensation of Officers. The officers of the Corporation shall be
entitled to receive such compensation for their services as shall from time to
time be determined by the Board of Directors.
ARTICLE IV Indemnification of Directors and Officers
SECTION 1. Nature of Indemnity. 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, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he is or was or has agreed to
become a director or officer of the Corporation, or is or was serving or has
agreed to serve at the request of the Corporation as a Director or officer of
another corporation,
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partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, and may indemnify
any person who was or is a party or is threatened to be made a party to such an
action, suit or proceeding by reason of the fact that he is or was or has agreed
to become an employee or agent of the Corporation, or is or was serving or has
agreed to serve at the request of the Corporation as an employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or on his behalf in
connection with such action, suit or proceeding and any appeal therefrom, 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; except that in the case of an action or suit by or in the right of
the Corporation to procure a judgment in its favor (1) such indemnification
shall be limited to expenses (including attorneys' fees) actually and reasonably
incurred by such person in the defense or settlement of such action or suit, and
(2) 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 Delaware 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 Delaware Court of Chancery or such other court shall deem
proper. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner that he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
SECTION 2. Successful Defense. 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 1 of this
Article IV 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 3. Determination that Indemnification is Proper. Any indemnification of
a Director or officer of the Corporation under Section 1 of this Article IV
(unless ordered by a court) shall be made by the Corporation unless a
determination is made that indemnification of the Director or officer is not
proper in the circumstances because he has not met the applicable standard of
conduct set forth in Section 1. Any indemnification of an employee or agent of
the Corporation under Section 1 (unless ordered by a court) may be made by the
Corporation upon a determination that indemnification of the employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth in Section 1. Any such determination shall be made (1) by the
Board of Directors by a majority vote of a quorum consisting of Directors who
were not parties to such action, suit or proceeding, or (2) if such a quorum is
not obtainable, or, even if obtainable a quorum of disinterested Directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
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SECTION 4. Advance Payment of Expenses. Unless the Board of Directors otherwise
determines in a specific case, expenses incurred by a Director or officer in
defending a civil or criminal action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding 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 Corporation as authorized in this Article IV.
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. The
Board of Directors may authorize the Corporation's legal counsel to represent
such Director, officer, employee or agent in any action, suit or proceeding,
whether or not the Corporation is a party to such action, suit or proceeding.
SECTION 5. Survival; Preservation of Other Rights. The foregoing indemnification
provisions shall be deemed to be a contract between the Corporation and each
Director, officer, employee and agent who serves in any such capacity at any
time while these provisions as well as the relevant provisions of the Delaware
General Corporation Law are in effect, and any repeal or modification thereof
shall not affect any right or obligation then existing with respect to any state
of facts then or previously existing or any action, suit, or proceeding
previously or thereafter brought or threatened based in whole or in part upon
any such state of facts. Such a contract right may not be modified retroactively
without the consent of such Director, officer, employee or agent. The
indemnification provided by this Article IV shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under any by-law,
agreement, vote of stockholders or disinterested Directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
Director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person. The Corporation may enter
into an agreement with any of its Directors, officers, employees or agents
providing for indemnification and advancement of expenses, including attorneys'
fees, that may change, enhance, qualify or limit any right to indemnification or
advancement of expenses created by this Article IV.
SECTION 6. Severability. If this Article IV or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Director or officer and may
indemnify each employee or agent of the Corporation as to costs, charges and
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article IV that shall not have been invalidated and to the
fullest extent permitted by applicable law.
SECTION 7. Subrogation. In the event of payment of indemnification to a person
described in Section 1 of this Article IV, the Corporation shall be subrogated
to the extent of such payment to any right of recovery such person may have and
such person, as a condition of receiving indemnification from the Corporation,
shall execute all documents and do all things that the Corporation may deem
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necessary or desirable to perfect such right of recovery, including the
execution of such documents necessary to enable the Corporation effectively to
enforce any such recovery.
SECTION 8. No Duplication of Payments. The Corporation shall not be liable under
this Article IV to make any payment in connection with any claim made against a
person described in Section 1 of this Article IV to the extent such person has
otherwise received payment (under any insurance policy, by-law or otherwise) of
the amounts otherwise indemnifiable hereunder.
ARTICLE V Stock; Seal; Fiscal Year
SECTION 1. Certificates For Shares of Stock. The certificates for shares of
stock of the Corporation shall be in such form, not inconsistent with the
Certificate of Incorporation, as shall be approved by the Board of Directors.
All certificates shall be signed (in original form or by facsimile) by the
Chairman or a Vice Chairman and by the Secretary or an Assistant Secretary or
the Treasurer or an Assistant Treasurer, and shall not be valid unless so
signed. In case any officer or officers who shall have signed any such
certificate or certificates shall cease to be such officer or officers of the
Corporation, whether because of death, resignation or otherwise, before such
certificate or certificates shall have been delivered by the Corporation, such
certificate or certificates may nevertheless be issued and delivered as though
the person or persons who signed such certificate or certificates had not ceased
to be such officer or officers of the Corporation. All certificates for shares
of stock shall be consecutively numbered as the same are issued. The name of the
person owning the shares represented thereby with the number of such shares and
the date of issue thereof shall be entered on the books of the Corporation.
Except as hereinafter provided, all certificates surrendered to the Corporation
for transfer shall be cancelled, and no new certificates shall be issued until
former certificates for the same number of shares have been surrendered and
cancelled.
SECTION 2. Lost. Stolen or Destroyed Certificates. Whenever a person owning a
certificate for shares of stock of the Corporation alleges that such certificate
has been lost, stolen or destroyed, he shall file in the office of the
Corporation an affidavit setting forth, to the best of his knowledge and belief,
the time, place and circumstances of the loss, theft or destruction, and, if
required by the Board of Directors, a bond of indemnity or other indemnification
sufficient in the opinion of the Board of Directors to indemnify the Corporation
and its agents against any claim that may be made against it or them on account
of the alleged loss, theft or destruction of any such certificate or the
issuance of a new certificate in replacement therefor. Thereupon the Corporation
may cause to be issued to such person a new certificate in replacement for the
certificate alleged to have been lost, stolen or destroyed. Upon the stub of
every new certificate so issued shall be noted the fact of such issue and the
number, date and the name of the registered owner of the lost, stolen or
destroyed certificate in lieu of which the new certificate is issued.
SECTION 3. Transfer of Shares. Shares of stock of the Corporation shall be
transferred on the books of the Corporation by the holder thereof, in person or
by his attorney duly authorized in writing, upon surrender and cancellation of
certificates for the number of shares of stock to be transferred, except as
provided in Section 2 of this Article V.
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SECTION 4. Regulations. The Board of Directors shall have power and authority to
make such rules and regulations as it may deem expedient concerning the issue,
transfer and registration of certificates for shares of stock of the
Corporation.
SECTION 5. 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 to receive payment of any dividend or other distribution or
allotment of any rights, or to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
as the case may be, the Board of Directors may fix, in advance, a record date,
which shall not be (i) more than sixty (60) nor less than ten (10) days before
the date of such meeting, or (ii) in the case of corporate action to be taken by
consent in writing without a meeting, prior to, or more than ten (10) days
after, the date upon which the resolution fixing the record date is adopted by
the Board of Directors, or (iii) more than sixty (60) days prior to any other
action. If no record date is fixed, 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; the record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting,
when no prior action by the Board of Directors is necessary, shall be the day on
which the first written consent is delivered to the Corporation; and 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 of Directors may fix a new record
date for the adjourned meeting.
SECTION 6. Dividends. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors shall have power to declare and pay
dividends upon shares of stock of the Corporation, but only out of funds
available for the payment of dividends as provided by law. Subject to the
provisions of the Certificate of Incorporation, any dividends declared upon the
stock of the Corporation shall be payable on such date or dates as the Board of
Directors shall determine. If the date fixed for the payment of any dividend
shall in any year fall upon a legal holiday, then the dividend payable on such
date shall be paid on the next day not a legal holiday.
SECTION 7. Corporate Seal. The Board of Directors shall provide a suitable seal,
containing the name of the Corporation, which seal shall be kept in the custody
of the Secretary. A duplicate of the seal may be kept and be used by any officer
of the Corporation designated by the Board of Directors or the Chairman.
SECTION 8. Fiscal Year. The fiscal year of the Corporation shall be such fiscal
year as the Board of Directors from time to time by resolution shall determine.
ARTICLE VI Miscellaneous Provisions.
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SECTION 1. Checks, Notes, Etc. All checks, drafts, bills of exchange,
acceptances, notes or other obligations or orders for the payment of money shall
be signed and, if so required by the Board of Directors, countersigned by such
officers of the Corporation and/or other persons as the Board of Directors from
time to time shall designate. Checks, drafts, bills of exchange, acceptances,
notes, obligations and orders for the payment of money made payable to the
Corporation may be endorsed for deposit to the credit of the Corporation with a
duly authorized depository by the Treasurer and/or such other officers or
persons as the Board of Directors from time to time may designate.
SECTION 2. Loans. No loans and no renewals of any loans shall be contracted on
behalf of the Corporation except as authorized by the Board of Directors. When
authorized to do so, any officer or agent of the Corporation may effect loans
and advances for the Corporation from any bank, trust company or other
institution or from any firm, corporation or individual, and for such loans and
advances may make, execute and deliver promissory notes, bonds or other
evidences of indebtedness of the Corporation. When authorized so to do, any
officer or agent of the Corporation may pledge, hypothecate or transfer, as
security for the payment of any and all loans, advances, indebtedness and
liabilities of the Corporation, any and all stocks, securities and other
personal property at any time held by the Corporation, and to that end may
endorse, assign and deliver the same. Such authority may be general or confined
to specific instances.
SECTION 3. Contracts. Except as otherwise provided in these By-Laws or by law or
as otherwise directed by the Board of Directors, the Chairman or any Vice
Chairman or President shall be authorized to execute and deliver, in the name
and on behalf of the Corporation, all agreements, bonds, contracts, deeds,
mortgages and other instruments, either for the Corporation's own account or in
a fiduciary or other capacity, and the seal of the Corporation, if appropriate,
may be affixed thereto by any of such officers or the Secretary or an Assistant
Secretary. The Board of Directors, the Chairman or any Vice Chairman or
President designated by the Board of Directors may authorize any other officer,
employee or agent to execute and deliver, in the name and on behalf of the
Corporation, agreements, bonds, contracts, deeds, mortgages and other
instruments, either for the Corporation's own account or in a fiduciary or other
capacity, and, if appropriate, to affix the seal of the Corporation thereto. The
grant of such authority by the Board or any such officer may be general or
confined to specific instances.
SECTION 4. Waivers of Notice. Whenever any notice whatever is required to be
given by law, by the Certificate of Incorporation or by these By-Laws to any
person or persons, a waiver thereof in writing, signed by the person or persons
entitled to the notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
SECTION 5. Offices Outside of Delaware. Except as otherwise required by the laws
of the State of Delaware, the Corporation may have an office or offices and keep
its books, documents and papers outside of the State of Delaware at such place
or places as from time to time may be determined by the Board of Directors or
the Chairman.
ARTICLE VII Amendments
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These By-Laws and any amendment thereof may be altered, amended or repealed, or
new By-Laws may be adopted, by the Board of Directors at any regular or special
meeting by the affirmative vote of a majority of all of the members of the
Board, provided in the case of any special meeting at which all of the members
of the Board are not present, that the notice of such meeting shall have stated
that the amendment of these By-Laws was one of the purposes of the meeting; but
these ByLaws and any amendment thereof may be altered, amended or repealed or
new By-Laws may be adopted by the holders of a majority of the total outstanding
stock of the Corporation entitled to vote at any annual meeting or at any
special meeting, provided, in the case of any special meeting, that notice of
such proposed alteration, amendment, repeal or adoption is included in the
notice of the meeting.
Dated: November ____, 2000
CERTIFICATE OF CHAIRMAN
The undersigned does hereby certify that: (i) he is the duly elected and
qualified Chairman of InfoActive, Inc., a Delaware corporation (the "Company"),
and (ii) the foregoing is a true and correct copy of the Bylaws of the Company
reviewed and adopted by the Board of the Company as of November ___, 2000
-------------------------------
Samuel D. Cannavo, Chairman
