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EXHIBIT 3.2
BYLAWS OF
SILVER OCTOPUS, INC.
ARTICLE I
BUSINESS OFFICES
Section 1.1. The corporation shall have such offices as its business
may require within or without the State of Delaware
ARTICLE II
REGISTERED OFFICES AND REGISTERED AGENT
Section 2.1. DELAWARE. The address of the initial registered office in
the State of Delaware and the name of the initial registered agent of the
corporation at such address are set forth in the Certificate of Incorporation.
The corporation may, from time to time designate a different address as its
registered office or a different person as its registered agent, or both;
provided, however, that such designation shall become effective upon the filing
of a statement of such change with the Department of State of the State of
Delaware as is required by law.
Section 2.2. OTHER STATES. In the event the corporation desires to
qualify to do business in one or more states other than Delaware, the
corporation shall designate the location of the registered office in each such
state and designate the registered agent for service of process at such address
in the manner provided by the law of the state in which the corporation elects
to be qualified.
ARTICLE III
SHAREHOLDERS' MEETING
Section 3.1. PLACE OF MEETINGS. Meetings of the shareholders shall be
held at the principal office of the corporation or any other place (within or
without the State of Delaware) designated in the notice of the meeting.
Section 3.2. ANNUAL MEETING. An annual meeting of the shareholders
shall be held within four months after the close of the corporation's fiscal
year at a time and place designated by the Board of Directors at which meeting
the shareholders shall elect a Board of Directors and transact other business.
Section 3.3. SPECIAL MEETINGS. Special meetings of the shareholders
shall be held when directed by the President or the Board of Directors, or when
requested in writing by the holders of not less than ten percent of all the
shares entitled to vote at the meeting. A meeting requested by shareholders
shall be called for a date not less than ten nor more than sixty days after the
request is made, unless the shareholders requesting the meeting designate a
later date.
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The call for the meeting shall be issued by the Secretary, unless the President,
Board of Directors or shareholders requesting the meeting shall designate
another person to do so.
Section 3.4. NOTICE. Written notice stating the place, day, and hour
of the meeting and, in the case of a special meeting, the purpose or purposes
for which the meeting is called, shall be delivered not less than ten nor more
than sixty days before the meeting, either personally or by first class mail, by
or at the direction of the President, the Secretary, or the officer or persons
calling the meeting to each shareholder of record entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail addressed to the shareholder at his address as it
appears on the stock transfer books of the corporation, with postage thereon
prepaid.
Section 3.5. NOTICE OF ADJOURNED MEETINGS. When a meeting is adjourned
to another time or place, it shall not be necessary to give any notice of the
adjourned meeting if the time and place to which the meeting is adjourned are
announced at the meeting at which the adjournment is taken, and at the adjourned
meeting any business may be transacted that might have been transacted on the
original date of the meeting. If, however, after the adjournment, the Board of
Directors fixes a new record date for the adjourned meeting, a notice of the
adjourned meeting shall be given as provided in section 3.4., above, to each
shareholder of record on the new record date entitled to vote at such meeting.
Section 3.6. WAIVER OF NOTICE. Whenever notice is required to be given
to any shareholder, a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be the equivalent to the giving of such notice. 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 business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of any regular or special meeting of the shareholders need be specified
in the written waiver of notice.
Section 3.7. CLOSING OF TRANSFER BOOKS AND FIXING RECORD DATE. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or entitled to receive
payment of any dividend, or in order to make a determination of shareholders for
any other purpose, the Board of Directors may provide that the stock transfer
books shall be closed for a stated period but not to exceed, in any case, sixty
days. If the stock transfer books shall be closed for the purpose of determining
shareholders entitled to notice of or to vote at a meeting of shareholders, such
books shall be closed for at least ten days immediately preceding such meeting.
In lieu of closing the stock transfer books, the Board of Directors may
fix in advance a date as the record date for any determination of shareholders,
such date in any case to be not more than sixty days and, in case of a meeting
of shareholders, not less than ten days prior to the date on which the
particular action requiring such determination of shareholders is to be taken.
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If the stock transfer books are not closed and no record date is fixed
for the determination of shareholders entitled to notice or to vote at a meeting
of shareholders, or shareholders entitled to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of shareholders.
When a determination of shareholders entitled to vote at any meeting
of shareholders has been made as provided in this section, such determination
shall apply to any adjournment thereof, unless the Board of Directors fixes a
new record date for the adjourned meeting.
Section 3.8. RECORD OF SHAREHOLDERS HAVING VOTING RIGHTS.
(1) If the corporation shall have more than five shareholders, the
officers or agent having charge of the stock transfer books for shares of the
corporation shall make, at least ten days before each meeting of shareholders, a
complete list of the shareholders entitled to vote at such meeting or any
adjournment thereof, with the address of and the number and class and series, if
any, of shares held by each. The list, for a period of ten days prior to such
meeting, shall be kept on file at the registered office of the corporation, at
the principal place of business of the corporation or at the office of the
transfer agent or registrar of the corporation and any shareholder shall be
entitled to inspect the list at any time during usual business hours. The list
shall also be produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any shareholder at any time during the
meeting. If the requirements of this section have not been substantially
complied with, the meeting on demand of any shareholder in person or by proxy,
shall be adjourned until the requirements are complied with. If no such demand
is made, failure to comply with the requirements of this section shall not
affect the validity of any action taken at such meeting.
(2) If the corporation shall have less than six shareholders, the
books of record of shareholders shall be made available to any shareholder at
any annual or special meeting of the shareholders, upon the request of any
shareholder. If the books of record shall not be made available to the
shareholder requesting them at the meeting where the request is made, the
meeting, on demand of any shareholder in person or by proxy, shall be adjourned
until the requirements are complied with. If no such demand is made, failure to
comply with the requirements of this section shall not affect the validity of
any action taken at such meeting.
Section 3.9. SHAREHOLDER QUORUM. A majority of the shares entitled to
vote, represented in person or by proxy, shall constitute a quorum at a meeting
of shareholders. When a specified item of business is required to be voted on by
a class or series of stock, a majority of the shares of such class or series
shall constitute a quorum for the transaction of such item of business by that
class or series. If a quorum is present, the affirmative vote of a majority of
the shares represented at the meeting and entitled to vote on the subject matter
shall be the act of the shareholders, unless the vote of a greater number or
voting by class is required by the Delaware General Corporation Law or by the
Certificate of Incorporation or by these Bylaws. After a quorum has been
established at a shareholders' meeting, the subsequent withdrawal of
shareholders, so as to reduce the number of shares entitled to vote at the
meeting below the
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number required for a quorum shall not affect the validity of any action taken
at the meeting or any adjournment thereof.
Section 3.10. VOTING OF SHARES. Each outstanding share, regardless of
class, shall be entitled to one vote on each matter submitted to a vote at a
meeting of shareholders, except as may otherwise be provided in the Certificate
of Incorporation.
A shareholder may vote either in person or by proxy executed in writing
by the shareholder or his duly authorized attorney-in-fact.
At each election for directors every shareholder entitled to vote at
such election shall have the right to vote, in person or by proxy, the number of
shares owned by him for as many persons as there are directors to be elected at
that time and for whose election he has a right to vote, and if cumulative
voting is specifically authorized by the Certificate of Incorporation, he may
cumulate his votes by giving one candidate as many votes as the number of
directors to be elected at that time multiplied by the number of his shares, or
by distributing such votes on the same principle among any number of such
candidates.
Section 3.11. PROXIES. Every shareholder entitled to vote at a meeting
of shareholders or to express consent or dissent without a meeting, or a
shareholders' duly authorized attorney-in-fact may authorize another person or
persons to act for him by proxy.
Every proxy must be signed by the shareholder or his attorney-in-fact.
No proxy shall be valid after the expiration of eleven months from the date
thereof unless otherwise provided in the proxy. Every proxy shall be revocable
at the pleasure of the shareholder executing it, except as otherwise provided by
law.
If a proxy for the same shares confers authority upon two or more
persons and does not otherwise provide, a majority of them present at the
meeting, or if only one is present then that one, may exercise all the powers
conferred by the proxy; but if the proxy holders present at the meeting are
equally divided as to the right and manner of voting in any particular case, the
voting of such shares shall be prorated.
Section 3.12. ACTION BY SHAREHOLDERS WITHOUT A MEETING.
(1) Any action required to be taken at any annual or special
meeting of shareholders of the corporation, or any action which may be taken at
any annual or special meeting of such shareholders, 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 a
vote thereon were present and voted. If shares are entitled to be voted by class
and if any class of shares is entitled to vote thereon as a class, such written
consent shall be required of the holders of a majority of the shares of each
class of shares entitled to vote as a class thereon and of the total shares
entitled to vote thereon.
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(2) Within l0 days after obtaining such authorization by written
consent, notice must be given to those shareholders who have not consented in
writing. The notice shall fairly summarize the material features of the
authorized action and, if the action be a merger, consolidation, or sale or
exchange of assets for which dissenters rights are provided under the Delaware
General Corporation Law, the notice shall contain a clear statement of the right
of shareholders dissenting therefrom to be paid the fair value of their shares
upon compliance with further provisions of this chapter regarding the rights of
dissenting shareholders.
(3) In the event that the action to which the shareholders consent
is such as would have required the filing of a certificate under any other
section of the Delaware General Corporation Law if such action had been voted on
by shareholders at a meeting thereof, the certificate filed under such other
section shall state that written consent has been given in accordance with the
provisions of Section 228 of the Delaware General Corporation Law.
ARTICLE IV
DIRECTORS
Section 4.1. FUNCTION. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of a corporation shall be
managed under the direction of, the Board of Directors.
Section 4.2. QUALIFICATION. Directors need not be residents of this
state or shareholders of this corporation.
Section 4.3. COMPENSATION. The Board of Directors shall have authority
to fix the compensation of directors unless otherwise provided in the
Certificate of Incorporation.
Section 4.4. NUMBER. This corporation shall have one (1) director. The
number of directors may be increased or decreased from time to time by the
shareholders without need to amend these bylaws, but shall never be less than
one. No decrease shall have the effect of shortening the terms of any incumbent
director.
Section 4.5. ELECTION AND TERM. Each person named in the Certificate
of Incorporation as a member of the initial Board of Directors shall hold office
until the first annual meeting of shareholders and until his successor shall
have been elected and qualified or until his earlier resignation, removal from
office, or death.
At the first annual meeting of shareholders and at each annual meeting
thereafter the shareholders shall elect directors to hold office until the next
succeeding annual meeting. Each director shall hold office for the term for
which he is elected and until his successor shall have been elected and
qualified or until his earlier resignation, removal from office, or death.
Section 4.6. REMOVAL OF DIRECTORS. Any directors, or the entire Board
of Directors may be removed, with or without cause, at a meeting of the
shareholders called expressly for that purpose, as provided in Section 141 of
the Delaware General Corporation Law.
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Section 4.7. VACANCIES. Any vacancy occurring in the Board of
Directors, including any vacancy created by reason of an increase in the number
of directors, may be filled by the affirmative vote of a majority of the
remaining directors though less than a quorum of the Board of Directors. A
director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
Section 4.8. QUORUM AND VOTING. A majority of the number of directors
fixed by these bylaws shall constitute a quorum for the transaction of business.
The act of the majority of the directors present at a meeting at which a quorum
is present shall be the act of the Board of Directors.
Section 4.9. EXECUTIVE AND OTHER COMMITTEES. The Board of Directors,
by resolution adopted by a majority of the full Board of Directors, may
designate from among its members an executive committee and one or more other
committees each of which, to the extent provided in such resolution shall have
and may exercise all the authority of the Board of Directors, as limited by the
laws of the State of Delaware.
The Board of Directors, by resolution adopted in accordance with this
section, may designate one or more directors as alternate members of any such
committee, who may act in the place and stead of any absent member or members at
any meeting of such committee.
Section 4.10. PLACE OF MEETINGS. Regular and special meetings by the
Board of Directors may be held within or without the State of Delaware.
Section 4.11. TIME, NOTICE AND CALL OF MEETINGS. Regular meetings of
the Board of Directors shall be held immediately following the annual meeting of
shareholders each year, and regular or special meetings may be held at such
times thereafter as the Board of Directors may fix, and at such other times as
called by the Chairman of the Board, the President of the corporation or any two
directors. Written notice of the time and place of special meetings of the Board
of Directors shall be given to each director by either personal delivery,
telegram, or cablegram at least two days before the meeting, or by notice mailed
to each director at least five days before the meeting.
Notice of a meeting of the Board of Directors need not be given to any
director who signs a waiver of notice either before or after the meeting.
Attendance of a director at a meeting shall constitute a waiver of notice of
such meeting and waiver of any and all objections to the place of the meeting,
the time of the meeting, or the manner in which it has been called or convened,
except when a director states, at the beginning of the meeting, any objection to
the transaction of business because the meeting is not lawfully called or
convened.
Members of the Board of Directors may participate in a meeting of such
board by conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other at the same
time. Participation by such means shall constitute presence in person at a
meeting.
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Section 4.12. ACTION WITHOUT A MEETING. Any action required to be taken
at a meeting of the directors of a corporation, or any action which may be taken
at a meeting of the directors or a committee thereof, may be taken without a
meeting if a consent in writing, setting forth the action so to be taken, signed
by all of the directors, or all the members of the committee, as the case may
be, is filed in the minutes of the proceedings of the board or of the committee.
Such consent shall have the same effect as a unanimous vote.
Section 4.13. DIRECTOR CONFLICTS OF INTEREST. No contract or other
transaction between this corporation and one or more of its directors or any
other corporation, firm, association, or entity in which one or more of the
directors are directors or officers or are financially interested, shall be
either void or voidable because of such relationship or interest or because such
director or directors are present at the meeting of the Board of Directors or a
committee thereof which authorizes, approves, or ratifies such contract or
transaction or because his or their votes are counted for such purpose, if:
(a) The fact of such relationship or interest is disclosed or
known to the Board of Directors or committee which authorizes, approves, or
ratifies the contract or transaction by a vote or consent sufficient for the
purpose without counting the votes or consents of such interested directors; or
(b) The fact of such relationship or interest is disclosed or
known to the shareholders entitled to vote and they authorize, approve, or
ratify such contract or transaction by vote or written consent; or
(c) The contract or transaction is fair and reasonable as to the
corporation at the time it is authorized by the board, a committee or the
shareholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or a committee
thereof which authorizes, approves, ratifies such contract or transaction.
ARTICLE V
OFFICERS
Section 5.1. OFFICERS. The officers of this corporation shall consist
of a president, a secretary, and a treasurer, each of whom shall be elected by
the Board of Directors. One or more vice presidents and such other officers and
assistant officers and agents as may be deemed necessary may be elected or
appointed by the Board of Directors from time to time. Any two or more offices
may be held by the same person.
Section 5.2. DUTIES. The officers of this corporation shall have the
following duties:
(a) The President shall be the chief executive officer of the
corporation, shall have general and active management of the business and
affairs of the corporation subject to the
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directions of the Board of Directors, and shall preside at all meetings of the
shareholders and Board of Directors.
(b) The Secretary shall have custody of, and maintain, all of the
corporate records except the financial records; shall record the minutes of all
meetings of the shareholders and the Board of Directors or its committees, send
all notices of meetings out, and perform such other duties as may be prescribed
by the Board of Directors or the President.
(c) The Treasurer shall have custody of all corporate funds and
financial records, shall keep full and accurate accounts of receipts and
disbursements and render accounts thereof at the annual meetings of shareholders
and whenever else required by the Board of Directors or the President, and shall
perform such other duties as may be prescribed by the Board of Directors or the
President.
(d) The Vice President, if one is elected, shall, in the absence
or disability of the President perform the duties and exercise the powers of the
President. He also shall perform whatever duties and have whatever powers the
Board of Directors may from time to time assign him. If more than one vice
president is elected, one thereof shall be designated as Executive Vice
President and shall, in the absence or disability of the President, perform the
duties and exercise the powers of the President and each other vice presidents
shall only perform whatever duties and have whatever powers the Board of
Directors may from time to time assign him.
Section 5.3. REMOVAL OF OFFICERS. Any officer or agent elected or
appointed by the Board of Directors may be removed by the board whenever in its
judgment the best interests of the corporation will be served thereby.
Section 5.4. VACANCIES. Any vacancy, however occurring, in any office
may be filled by the Board of Directors.
Section 5.5. COMPENSATION. The compensation of the President,
Secretary, Treasurer, and such other officers elected or appointed by the Board
of Directors shall be fixed by the Board of Directors and may be changed from
time to time by a majority vote of the board. The fact that an officer is also a
director shall not preclude such person from receiving compensation as either a
director or officer, nor shall it affect the validity of any resolution by the
Board of Directors fixing such compensation. The President shall have authority
to fix the salaries of all employees of the corporation other than officers
elected or appointed by the Board of Directors.
ARTICLE VI
STOCK CERTIFICATES
Section 6.1. AUTHORIZED ISSUANCE. This corporation may issue the
shares of stock authorized by its Certificate of Incorporation and none other.
Shares may be issued only pursuant to a resolution adopted by the Board of
Directors. No shares may be validly issued or
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transferred in violation of any provision of these bylaws or in violation of any
agreement respecting the issuance or transfer of shares to which the corporation
is a party.
Section 6.2. ISSUANCE. Every holder of shares in this corporation
shall be entitled to have a certificate representing all shares to which he is
entitled. No certificate shall be issued for any share until such share is fully
paid.
Section 6.3. SIGNATURES. Certificates representing shares in this
corporation shall be signed by the President or Vice President and the Secretary
or an Assistant Secretary and may be sealed with the seal of this corporation or
a facsimile thereof. The signatures of the President or Vice President and the
Secretary or Assistant Secretary may be facsimiles if the certificate is
manually signed on behalf of a transfer agent or a registrar, other than the
corporation itself or an employee of the corporation.
Section 6.4. FORM. Each certificate representing shares shall state
upon the face thereof: the name of the corporation; that the corporation is
organized under the laws of Delaware; the name of the person or persons to whom
issued; the number and class of shares, and the designation of the series, if
any, which such certificate represents; and the par value of each share
represented by such certificate, or a statement that the shares are without par
value. Each certificate shall otherwise comply, in all respects, with the
requirements of law.
Section 6.5. TRANSFER OF STOCK. The corporation shall register a stock
certificate presented to it for transfer if the certificate is properly endorsed
by the holder of record or by his duly authorized attorney; provided, however,
that the corporation or its transfer agent may require the signature of such
person to be guaranteed by a commercial bank or trust company or by a member of
the New York or American Stock Exchange.
Section 6.6. LOST, STOLEN, OR DESTROYED CERTIFICATES. The corporation
shall issue a new stock certificate in the place of any certificate previously
issued if the holder of record of the certificate (a) makes proof in affidavit
form that it has been lost, destroyed, or wrongfully taken; (b) requests the
issue of a new certificate before the corporation has notice that the
certificate has been acquired by a purchaser for value in good faith and without
notice of any adverse claim; (c) gives bond in such form as the corporation may
direct, to indemnify the corporation, the transfer agent, and registrar against
any claim that may be made on account of the alleged loss, destruction, or theft
of a certificate; and (d) satisfies any other reasonable requirements imposed by
the corporation.
ARTICLE VII
BOOKS AND RECORDS
Section 7.1. BOOKS AND RECORDS. This corporation shall keep correct
and complete books and records of accounts and shall keep minutes of the
proceedings of its shareholders, Board of Directors, and committees of
directors.
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This corporation shall keep at its registered office or principal place
of business, or at the office of its transfer agent or registrar, a record of
its shareholders, giving the names and addresses of all shareholders, and the
number, class, and series, if any, of the shares held by each.
Any books, records, and minutes may be in written form or in any other
form capable of being converted into written form within a reasonable time.
Section 7.2. SHAREHOLDERS' INSPECTION RIGHTS. Any person who shall
have been a holder of record of shares or of voting trust certificates therefor
at least six months immediately preceding his demand or shall be the holder of
record of, or the holder of record of voting trust certificates for, at least
five percent of the outstanding shares of any class or series of the
corporation, upon written demand stating the purpose thereof, shall have the
right to examine, in person or by agent or attorney, at any reasonable time or
times, for any proper purpose its relevant books and records of accounts,
minutes, and records of shareholders and to make extracts therefrom.
Section 7.3. FINANCIAL INFORMATION. Unless modified by resolution of
the shareholders, not later than four months after the close of each fiscal year
this corporation shall prepare a balance sheet showing in reasonable detail the
financial condition of the corporation as of the close of its fiscal year, and a
profit and loss statement showing the results of the operations of the
corporation during its fiscal year.
Upon the written request of any shareholder or holder of voting trust
certificates for shares of the corporation, the corporation shall mail to such
shareholder or holder of voting trust certificates a copy of the most recent
such balance sheet and profit and loss statement.
The balance sheets and profit and loss statements shall be filed in the
registered office of the corporation in this state, shall be kept for at least
five years, and shall be subject to inspection during business hours by any
shareholder or holder of voting trust certificates, in person or by agent.
ARTICLE VIII
DISTRIBUTIONS
The Board of Directors of this corporation may, from time to time,
declare and the corporation may make distributions as permitted by law on its
shares in cash, property, or its own shares, except when the corporation is
insolvent or when the payment thereof would render the corporation insolvent.
ARTICLE IX
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 an action, suit or
proceeding, whether criminal, civil,
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administrative or investigative, by reason of the fact that he, his heirs,
executors and assigns is or was a director, officer, employee or agent of the
Corporation or is or was serving, at the request of the Corporation, as
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
ARTICLE X
CORPORATE SEAL
The Board of Directors shall provide a corporate seal which shall have
the name of the corporation inscribed thereon, and may be facsimile, engraved,
printed, or an impression seal.
ARTICLE XI
AMENDMENT
These bylaws may be altered, amended or repealed, and new bylaws may be
adopted, by either the Board of Directors or the shareholders, but the Board of
Directors may not alter, amend or repeal any bylaw adopted by the shareholders
if the shareholders specifically provide that such bylaw is not subject to
amendment or repeal by the directors.
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