Exhibit No. 2.1
Form 10-SB
Network Capital, Inc.
BY - LAWS
OF
NETWORK CAPITAL, INC.
ARTICLE I
Offices
Section 1. Registered office. The address of the
registered office of the corporation is 5805 West 61st Street,
Edina, Minnesota 55436. The registered office need not be
identical with the principal office of the corporation and may be
changed from time to time by the Board of Directors.
Section 2. Other Offices. The corporation may have such other
offices at such other places within and without the State of
Minnesota as the Board of Directors may from time to time
determine.
ARTICLE II
Meetings of Shareholders
Section 1. Place of Meeting. All meetings of the
shareholders of this corporation shall be held at its principal
office unless some other place for any such meeting within or
without the State of Minnesota is designated by the Board of
Directors in the written notice of meeting.
Section 2. Annual Meeting. The annual meeting of the
shareholders of this corporation shall be held on the first Monday
in March of each year or on such other date during the calendar
year as may be designated by the Board of Directors in the written
notice of meeting, which written notice of meeting shall designate
the time of meeting and place of meeting if other than the
corporation's principal office. At the annual meeting the
shareholders shall elect a Board of Directors and transact such
other business as may be properly brought before the meeting. if
an annual meeting is not held during any calendar year, or if the
directors are not elected thereat, the directors may he elected at
a special meeting of the shareholders called for that purpose,
which special meeting shall be called upon the demand of any
shareholder entitled to vote, which demand for and call of said
special meeting shall be in accordance with the provisions of
Section 3 of this Article relating to demands for call of a
special meeting of the shareholders.
Section 3. Special Meetings. Special meetings of
shareholders, for any purpose or purposes, may be called by the
President and in his absence by the Vice President or by the Board
of Directors or any two or more members thereof, or in the manner
hereinafter provided by one or more shareholders holding not less
than one tenth of the voting power of the shareholders. Upon
request in writing by registered mail or by any person or persons
entitled to call a meeting of shareholders, it shall be the duty
of such officer forthwith to cause notice to be given to the
shareholders entitled to vote, of a meeting to be held at such
time as such officer shall fix, not less than one (1) or more than
sixty (60) days after the receipt of such request, The officer
shall not fix a date which unduly delays the meeting or shall have
the effect of defeating the purpose of the
E-3
<PAGE>
meeting, Business transacted at any special meeting of
shareholders shall be limited to the purpose or purposes stated in
the notice of meeting.
Section 4. Notice of Meeting, Written notice of the annual
meeting stating the time and place thereof shall be given to each
shareholder of record entitled to vote at such meeting at least
ten (10) days prior to the date of such annual meeting. Written
notice of all special meetings of shareholders stating the time,
place and purposes thereof shall also be given to each shareholder
of record entitled to vote at such meeting at least one (1) day
before the date fixed for such meeting. All notices of meeting
shall be mailed to each shareholder at his address as it appears
on the stock transfer books of the corporation and shall be deemed
delivered when deposited in the United States mail, with postage
thereon prepaid. Notices given by telegram shall he deemed
delivered when the telegram is delivered to the telegraph company
properly addressed and prepaid, Any shareholder may waive notice
of any meeting.
Section 5. Record Date. For the purposes of determining
shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or shareholders entitled
to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the
Board of Directors of the corporation may but need not fix a date
as the record date for any such determination of shareholders,
which record date, however, shall in no event be more than sixty
(60) days prior to any such intended action or meeting,
Section 6. Quorum, A majority of the outstanding shares of
the corporation entitled to vote, represented in person or by
proxy, shall constitute a quorum at a meeting of shareholders. If
less than a majority of the outstanding shares are represented at
a meeting a majority of the shares so represented may adjourn the
meeting from time to time without further notice. Any business may
be transacted at the meeting held pursuant to the adjournment and
at which a quorum shall be present or represented which might have
been transacted at the adjourned meeting. The shareholders present
at a duly organized meeting may continue to transact business
until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum.
Section 7. Voting and Proxies. At each meeting of the
shareholders every shareholder shall be entitled to one vote in
person or by proxy for each share of capital stock held by such
shareholder but no proxy shall be entitled to vote after eleven
(11) months from the date of its execution, unless otherwise
provided in the proxy. Every proxy shall be in writing (which
shall include telegraphing, cabling or telephotographic
transmission), and shall be filed with the Secretary of the
corporation before or at the time of the meeting. All questions
regarding the qualification of voters, the validity of proxies and
the acceptance or rejection of votes shall be decided by the
presiding officer of the meeting. When a quorum is present at any
meeting, the votes of the holders of the majority of the shares
having voting power present in person or represented by proxy
shall decide any questions brought before such meeting, unless the
question is one upon which by express provision of the statutes or
the Articles of Incorporation or these By-laws a different vote is
required, in which case such express provision shall govern and
control the decision of such question.
Section 8. Informal Action By Shareholders. Any action
required to be taken at a meeting of the shareholders, or any
other action which may be taken at a meeting of the shareholders,
may be
E-4
<PAGE>
taken without a meeting if a consent in writing setting forth the
action so taken shall be signed by all the shareholders of record
entitled to vote as of the date of such resolution.
ARTICLE III
Directors
Section 1. General Powers. The business and the property of
the corporation shall be managed and controlled by the Board of
Directors. The directors may exercise all such powers and do all
such things as may be exercised or done by the corporation subject
to the provisions of the Articles of Incorporation, these By-laws
and all applicable law.
Section 2. Number, Tenure and Qualification. The number of
directors which shall constitute the whole Board of Directors
shall be three or as otherwise fixed from time to time by
resolution of the shareholders subject to increase by resolution
of the Board of Directors. No decrease in the number of directors
pursuant to this section shall effect the removal of any director
then in office except upon compliance with the provisions of
Section 8 of this Article. Each director shall be elected at the
annual meeting of shareholders, except as provided in Section 7 of
this Article, and shall hold office until the next annual meeting
of shareholders and thereafter until his successor is duly elected
and qualified, unless a prior vacancy shall occur by reason of his
death, resignation or removal from office. Directors need not be
shareholders.
Section 3. Regular Meetings. A regular meeting of the Board
of Directors shall be held immediately after, and at the same
place as, the annual meeting of shareholders. other regular
meetings of the Board of Directors may be held at such time and at
such place as shall from time to time Joe determined by the Board
of Directors.
Section 4. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the President, or
in his absence by the Vice-President, or shall be called by the
Secretary on the written request of any three (3) directors. The
person or persons authorized to call special meetings may fix the
time and place, either within or without the State of Minnesota,
for any such special meeting.
Section 5. Notice of Meetings. Ten (10) day written notice of
the annual meeting of directors and of all regular meetings of
directors shall be given to all directors. Such notices shall be
deemed delivered when deposited in the United States mail properly
addressed, with postage thereon prepaid.
Ten (10) days written notice of all special meetings of the
Board of Directors shall be given to each director. In the event
that notice is given by mail, such notice shall be mailed at ~east
two (2) days prior to the special meeting and shall be deemed
delivered when deposited in the United States mail properly
addressed with postage thereon prepaid.
Notice given by telegram shall be deemed to be delivered when
the telegram is delivered to the telegraph company properly
addressed and prepaid.
E-5
<PAGE>
Any director may waive notice of any meeting. The attendance
of a director at any meeting shall constitute a waiver of notice
of such meeting, unless his attendance is for the express purpose
of objecting to the transaction of business on grounds that the
meeting is not lawfully called or convened.
Section 6. Quorum and Voting. A majority of the directors
then in office shall constitute a quorum for the transaction of
business at any regular or special meeting of the Board of
Directors. If a quorum shall not be present at any meeting of the
Board of Directors any of the directors present may adjourn the
meeting from time to time without further notice. The act of a
majority of the directors present at any meeting at which there is
a quorum shall be the act of the Board of Directors except as to
any question upon which any different or greater vote is required
by the Articles of Incorporation, these By-laws or Minnesota
Statutes.
Section 7. Vacancies and Newly Created-Directorships. Any
vacancy occurring in the Board of Directors may be filled by the
affirmative vote of a majority of the directors remaining in
office even though said remaining directors may be less than a
quorum; any newly created directorship resulting from an increase
in the authorized number of directors by action of the Board of
Directors may be filled by a two-thirds vote of the directors
serving at the time of such increase; or said vacancy or newly
created directorship may be filled by resolution of the
shareholders at any annual meeting or at any special meeting
called for that purpose, Unless a prior vacancy occurs by reason
of his death, resignation or removal from office any director so
elected shall hold office until the next annual meeting of
shareholders or until his successor is duly elected and qualified.
Section 8. Removal of Directors. The entire Board of
Directors or any director or directors may be removed from office
with or without cause, at any special meeting of the shareholders
duly called for that purpose a provided in these By-laws, by a
vote of the shareholders holding a majority of the shares entitled
to vote at an election of directors. At such meeting a successor
or successors may be elected by the vote of the holders of the
shares having voting power present in person or represented by
proxy, or if any vacancy is not so filled, it may be filled by the
directors as provided in Section 7 of this Article.
Section 9. Executive-Committee. The Board of Directors may,
by unanimous resolution of all directors then in office, appoint
an Executive Committee of three or more directors to meet and act
on behalf of the Board of Directors between meetings of the Board.
The Executive Committee shall advise and aid the officers of
the corporation in all matters concerning management of its
business, and between meetings of directors the Executive
Committee shall possess and may exercise all the powers of the
Board of Directors with reference to the conduct of the business
of the corporation, except the power to fill vacancies in their
own membership, which vacancies shall be filled by the Board of
Directors. The Executive Committee shall meet at stated times or
on notice to all members. It shall fix its own rules of procedure.
A majority of the committee shall constitute a quorum but the
affirmative vote of a majority of the whole committee shall be
necessary on every item of business. The Executive Committee shall
keep regular minutes of its proceedings and report the same to the
Board of Directors.
E-6
<PAGE>
Section 10. Other Committees. The Board of Directors may
appoint such other committees and delegate to such committees such
powers and responsibilities as it may from time to time deem
appropriate.
Section 11. Action In Writing, Any action which might be
taken at a meeting of the Board of Directors or of a lawfully
constituted Executive Committee thereof may be taken without a
meeting if such action is taken in writing and signed by all of
the directors then in office or by all of the members of such
committee as the case may be.
Section 12. Meeting By Means of Conference Telephone. Members
of the Board of Directors of the corporation, or any committee
designated by such Board, may participate in a meeting of such
Board or committee by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and
participation in a meeting pursuant to this section shall
constitute presence in person at such meeting.
ARTICLE IV
Officers
Section Number. The officers of the corporation shall be
elected by the Board of Directors and shall include a President,
one or more Vice-Presidents, a Secretary and a Treasurer. The
Board of Directors may also appoint such other officers and
assistant officers as it may deem necessary. Except as provided in
these By-laws, the Boaard of Directors shall fix the powers,
duties and compensation of all officers. Officers may, but need
not, be directors of the corporation.
Section 2. Election and Term of Office. Officers shall be
elected at each annual meeting of the Board of Directors and shall
hold of f ice at the pleasure of the Board, An officer shall hold
office until his successor shall have been duly elected unless
prior thereto he shall have resigned or been removed from office
as hereinafter provided.
Section 3, Removal and vacancies. Any officer or agent
elected or appointed by the Board of Directors may be removed with
or without cause at any time by the vote of a majority of the
Board of Directors. Any vacancy in any office of the corporation
shall be filled by the Board of Directors.
Section 4, President. The President shall be chief executive
officer of the corporation, shall preside at all meetings of the
shareholders and the Board of Directors, shall have general and
active management of the business of the corporation, and shall
see that all orders and resolutions of the Board of Directors are
carried into effect. He shall have the general powers and duties
usually vested in the office of the President and shall have such
other powers and perform such other duties as the Board of
Directors may from time to time prescribe.
Section 5. Vice-Presidents, The Vice-President, or Vice-
Presidents in case there are more than one, shall have such powers
and perform such duties as the President or the Board of Directors
may from time to time prescribe. In the absence of the President
or in the event of his death, inability or refusal to act, the
Vice-President, or in the event there be more than one Vice-
President,
E-7
<PAGE>
the Vice Presidents in the order designated at the time of their
election, or in the absence of any designation, then in the order
of their election, shall perform the duties of the President and
when so acting, shall have all the powers of and be subject to all
of the restrictions upon the President,
Section 6. Secretary. The Secretary shall attend all meetings
of the Board of Directors and of the shareholders and record all
votes and the minutes of all proceedings of the Board of Directors
and of the shareholders in a book to be kept for that purpose. He
shall keep the stock books of the corporation. He shall give or
cause to be given notice of all meetings of the shareholders and
of special meetings of the Board of Directors, and shall perform
such other duties and have such other powers as the President or
the Board of Directors may from time to time prescribe.
Section 7. Treasurer. The Treasurer shall have the care and
custody of the corporate funds and securities of the corporation
and shall disburse the funds of the corporation as may be ordered
from time to time by the President or the Board of Directors. He
shall keep full and accurate account of all receipts and
disbursements in books belonging to the corporation and shall have
such other powers and perform such other duties as the President
or the Board of Directors may from time to time prescribe.
Section 8. Other Officers. The Assistant Secretaries and
Assistant Treasurers in the order of their seniority, unless
otherwise determined by the Board of Directors, shall, in the
absence or disability of the Secretary or Treasurer, perform the
duties and exercise the powers of the Secretary and Treasurer
respectively, Such Assistant Secretaries and Assistant Treasurers
shall have other powers and perform such other duties as the
President or the Board of Directors may from time to time
prescribe. Any other officers appointed by the Board of Directors
shall hold office for the term established by the Board of
Directors and shall have such powers, perform such duties and be
responsible to such other officer as the Board of Directors may
from time to time prescribe.
ARTICLE V
Certificates of Stock
Section 1. Certificates. Certificates representing shares of
the corporation shall be in such form as shall be determined by
the Board of Directors. Such certificates shall be signed by the
President or a Vice President and by the Secretary or an Assistant
Secretary, if a certificate is signed (1) by a transfer agent or
an assistant transfer agent or (2) by a transfer clerk acting on
behalf of the corporation and a registrar, the signature of any
such President, Vice-President, Secretary or Assistant Secretary
may be a facsimile, In case any officer or officers who have
signed, or whose facsimile signature or signatures have been used
on any such certificate or certificates, shall cease to be an
officer or officers of the corporation, whether because of death,
resignation or otherwise, before such certificate or certificates
have been delivered by the corporation such certificate or
certificates may nevertheless be adopted by the corporation and be
issued and delivered as though the person or persons who signed
such certificate or certificates or whose facsimile signature or
signatures have been used thereon had not ceased to be such
officer or officers of the corporation. All certificates for
shares shall be consecutively numbered or otherwise identified.
The name and address of the person to whom the shares represented
thereby are issued
E-8
<PAGE>
with the number of shares and date of issue shall be entered on
the stock transfer books of the corporation.
All certificates surrendered to the corporation or the
transfer agent for transfer shall be canceled and no new
certificate shall be issued until the former certificate for a
like number of shares shall have been surrendered and canceled.
Except that in case of a lost, destroyed or mutilated certificate,
a new one may be issued therefor upon such terms and indemnity to
the corporation as the Board of Directors may prescribe.
Section 2. Transfer of Shares. Transfer of shares of the
corporation shall be made only on the stock transfer books of the
corporation by the holder of record thereof or by his legal
representative who shall furnish proper evidence of authority to
transfer, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary of State of
the corporation, and on surrender of such shares to the
corporation or the transfer agent of the corporation. The person
in whose name shares stand on the books of the corporation shall
be deemed by the corporation to be the owner thereof for all
purposes.
ARTICLE VI
Contracts, Loans, Checks and Deposits
Section 1. Contracts. The Board of Directors may authorize
any officer or officers, agent or agents, to enter into any
contract or execute and deliver any instrument in the name of and
on behalf of the corporation, and such authority may be general or
confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of
the corporation, and no evidences of indebtedness shall be issued
in its name unless authorized by a resolution of the Board of
Directors. Such authority may be general or confined to specific
instances.
Section 3. Checks, Drafts, etc. All checks, drafts or other
orders for the payment of money, notes or other evidences of
indebtedness issued in the name of the corporation shall be signed
by such officer or officers, agent or agents of the corporation
and in such manner as shall from time to time be determined by
resolution of the Board of Directors.
Section 4. Deposits. All funds of the corporation not
otherwise employed shall be deposited from time to time to the
credit of the corporation in such banks, trust companies or other
depositories as the Board of Directors may select.
ARTICLE VII
Indemnification
Section 1. Indemnification, The corporation acting through
its Board of Directors, or as otherwise provided in this By-Law,
shall as fully as may be permitted from time to time by the
statutes and decisional law of the State of Minnesota or by any
other applicable rules or principles of law, indemnify each
officer of the corporation against the expense of any action to
which he was or is a party or is threatened to be made a party by
reason of the fact that he is or was an officer of the
corporation. Any provision in these By-Laws which would prevent
the indemnification of an
E-9
<PAGE>
officer to the full extent permitted by law as it may from time be
expanded by statute, decision of court or otherwise, shall be
deemed amended to conform to such expanded right of
indemnification without formal action by the Board of Directors or
shareholders.
Section 2. Definitions. As used in this By-Law: W the term
"officer" means any person who is, was or may hereafter he a
director, officer, employee or agent of this corporation or, at
the request of this corporation, of any other corporation or of
any partnership, joint venture, trust or other enterprise and the
rights of indemnification under this By-Law shall inure to the
benefit of the heirs, executors and administrators of any of such
persons, (ii) the term "action" means any threatened, pending or
completed action, suit or proceeding, wherever brought, whether
civil, criminal, administrative or investigative including those
by or in the right of the corporation and whether or not involving
an act or omission of an officer in his capacity as such, and
whether or not he is an officer, at the time of such action, and
(iii) the term "expenses of any action" shall include attorney's
fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with an action.
Section 3. Standard of Conduct'. An officer shall be
indemnified with respect to any action (other than an action by or
in the right of the corporation to procure a judgement in its
favor) 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, if it is a criminal action, he had no reasonable
cause to believe his conduct was unlawful. If the action be one by
or in the right of the corporation to procure a judgement in its
favor, then in addition to the requirements of the preceding
sentence, an officer shall be indemnified only if he is riot
adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation or, if he is adjudged
to be liable for negligence or misconduct in the performance of
his duty to the corporation, then he shall be indemnified only to
the extent that the court in which such action 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 incurred which such court shall deem proper. If he is
successful on the merits or otherwise in defense of any action, an
officer shall be indemnified for expenses actually and reasonably
incurred by him in connection with such action. in all other cases
(other than an action in which the officer is successful on the
merits or otherwise in defense of such action or in an action by
or in the right of the corporation to procure a judgement in its
favor where the officer has been adjudged to be liable for
negligence or misconduct in the performance of his duty to the
corporation), an officer shall be indemnified, unless ordered by a
court, only as authorized in the specific case upon a
determination that indemnification of the officer is proper in the
circumstances because he has met the applicable standard of
conduct set forth above. Such determination shall be made by the
Board of Directors by a majority vote or a quorum consisting of
directors who were not parties to such action or if such quorum is
not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion or by the shareholders. The determination may be made that
he is entitled to indemnification as to some matters even though
not so entitled as to others. The termination of any action by
judgement, order, settlement, conviction or upon a plea of nolo
contendre or its equivalent shall not, of itself, create a
presumption that the officer did not act in a manner entitling him
to indemnification under this By-law.
E-10
<PAGE>
Section 4. Determination of Conduct. Except where an officer
is successful on the merits or otherwise in the defense of an
action and except where a court determination is required by law
for indemnification in an action by or in the right of the
corporation an officer shall first seek a determination that he
met the applicable standard of conduct set forth above from the
Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action or 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 by the shareholders, it being the belief
of this corporation that the best judges of an officers conduct
are those familiar with the business activities of the
corporation. In the event that it is determined that the officer
partially or completely failed to meet the applicable standard of
conduct, or if no determination is reached within a reasonable
time, the officer may apply to the District Court of the State of
.Minnesota for a determination of his right to indemnification and
the result of any prior determination of that right by
disinterested directors or by independent legal counsel or by the
shareholders shall not be entered into evidence or considered by
the court in its independent determination.
Section 5. Expenses Advance. Expenses incurred in defending
an action may be paid by the corporation in advance of the final
disposition of such action as authorized by the Board of Directors
in the manner provided in Section 3 of this Article VII upon
receipt of an undertaking by or on behalf of such officers to
repay such amount unless it shall ultimately be determined that he
is entitled to be indemnified by the corporation as authorized by
law.
Section 6. Nonexclusivity The indemnification provided by
this By-Law shall not exclude any other right to which an officer
may be entitled under any agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while
holding office, and shall not imply that the corporation nay not
provide lawful indemnification not expressly provided for by this
By-law.
Section 7. Insurance,. The corporation may purchase and
maintain insurance on behalf of any officer against any liability
asserted against him and incurred by him in any such capacity to
the full extent as may from time to time be permitted by law.
Section 8. Notice to Shareholders. If an officer is
indemnified by the corporation other than by court order or action
by the shareholders, the corporation shall , not later than the
next annual meeting of shareholders unless such meeting is held
within three months from the date of such payment, and, in any
event, within fifteen months from the date of such payment, mail
to its shareholders of record at the time entitled to vote for the
election of directors a statement specifying the officers paid,
the amount paid and the nature and status of the litigation or
threatened litigation at the time of such payment.
ARTICLE VIII
MISCELLANEOUS
Section 1. Dividends. The Board of Directors may from time to
time declare, and the corporation may pay, dividends on its,
outstanding shares in the manner and upon the terms and conditions
provided by law.
E-11
<PAGE>
Section 2. Reserves. There may be set aside out of any funds
of the corporation available for dividends such sum or sums as the
directors may from time to time, in their absolute discretion,
deem proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property
of the corporation, or for the purchase of additional property, or
for such other purpose as the directors shall deem to he
consistent with the interests of the corporation, and the
directors may modify or abolish such reserve.
Section 3. Fiscal Year. The fiscal year of the
corporation shall begin on the first day of January and end on the
last day of December in each year.
Section 4. No Seal. This corporation shall have no
corporate seal.
Section 5. Amendments. Except as limited by the Articles of
Incorporation of the corporation, these by-laws may be altered or
amended by the Board of Directors at any regular or special
meeting of directors to the full extent permitted by law, subject
however to the power of the shareholders of this corporation to
alter or repeal such by-laws.
We, the undersigned, President and Secretary respectively of
Network Capital, Inc. do hereby certify that the foregoing by-laws
are the by-laws adopted for the corporation by its Board of
Directors at a meeting held on the th day of 199
/s/ PRESIDENT
/s/ SECRETARY
E-12
<PAGE>
