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BYLAWS
OF
ESYNCH CORPORATION
A Delaware Corporation
(Effective November 15, 1999
as Amended November 3, 2000)
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TABLE OF CONTENTS
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ARTICLE I. OFFICES ................................................................................ 1
Section 1. Registered Office........................................................... 1
Section 2. Other Offices............................................................... 1
Section 3. Books....................................................................... 1
ARTICLE II. MEETINGS OF STOCKHOLDERS................................................................. 1
Section 1. Place of Meetings........................................................... 1
Section 2. Annual Meetings............................................................. 1
Section 3. Special Meetings............................................................ 1
Section 4. Notification of Business to be Transacted at Meeting........................ 1
Section 5. Notice; Waiver of Notice.................................................... 2
Section 6. Quorum; Adjournment......................................................... 2
Section 7. Voting...................................................................... 3
Section 8. Stockholder Action by Written Consent Without a Meeting..................... 3
Section 9. List of Stockholders Entitled to Vote....................................... 3
Section 10. Stock Ledger................................................................ 3
Section 11. Inspectors of Election...................................................... 4
Section 12. Organization................................................................ 4
Section 13. Order of Business........................................................... 4
ARTICLE III. DIRECTORS............................................................................... 4
Section 1. Powers...................................................................... 4
Section 2. Number and Election of Directors............................................ 4
Section 3. Vacancies................................................................... 4
Section 4. Time and Place of Meetings.................................................. 5
Section 5. Annual Meeting.............................................................. 5
Section 6. Regular Meetings............................................................ 5
Section 7. Special Meetings............................................................ 5
Section 8. Quorum; Vote Required for Action; Adjournment............................... 5
Section 9. Action by Written Consent................................................... 6
Section 10. Telephone Meetings.......................................................... 6
Section 11. Committees.................................................................. 6
Section 12. Compensation................................................................ 6
Section 13. Interested Directors........................................................ 6
Section 14. Audit Committee............................................................. 7
Section 15. Compensation Committee...................................................... 7
ARTICLE IV. OFFICERS................................................................................. 7
Section 1. Executive Officers.......................................................... 7
Section 2. Election; Term of Office and Remuneration................................... 7
Section 3. Subordinate Officers........................................................ 7
Section 4. Removal..................................................................... 8
Section 5. Resignations................................................................ 8
Section 6. Powers and Duties........................................................... 8
ARTICLE V. STOCK ................................................................................. 8
Section 1. Form of Certificates........................................................ 8
Section 2. Signatures.................................................................. 8
Section 3. Lost Certificates........................................................... 9
Section 4. Transfers................................................................... 9
Section 5. Registered Owners........................................................... 9
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ARTICLE VI. LIMITATION OF LIABILITY.................................................................. 9
ARTICLE VII. INDEMNIFICATION.........................................................................10
Section 1. Action Other Than by or in the Right of the Corporation.....................10
Section 2. Action by or in the Right of the Corporation................................10
Section 3. Determination of Right of Indemnification...................................11
Section 4. Indemnification Against Expenses of Successful Party........................11
Section 5. Advances of Expenses........................................................11
Section 6. Right of Agent to Indemnification upon Application;
Procedure Upon Application..............................................12
Section 7. Other Rights and Remedies...................................................12
Section 8. Insurance...................................................................12
Section 9. Indemnity Fund..............................................................12
Section 10. Constituent Corporations....................................................13
Section 11. Other Enterprises, Fines, and Serving at Corporation's Request..............13
Section 12. Indemnification of Other Persons............................................13
Section 13. Savings Clause..............................................................13
ARTICLE VIII. RECORDS................................................................................14
Section 1. Maintenance and Inspection of Share Register................................14
Section 2. Maintenance and Inspection of Bylaws........................................14
ARTICLE IX. GENERAL PROVISIONS.......................................................................14
Section 1. Dividends...................................................................14
Section 2. Disbursements...............................................................14
Section 3. Fiscal Year.................................................................15
Section 4. Corporate Seal..............................................................15
Section 5. Record Date.................................................................15
Section 6. Voting of Stock Owned by the Corporation....................................15
Section 7. Construction and Definitions................................................15
Section 8. Amendments..................................................................15
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BYLAWS
OF
ESYNCH CORPORATION
A Delaware Corporation
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE. The address of the registered office of
the Corporation in the State of Delaware shall be 1209 Orange Street,
Wilmington, New Castle County, Delaware 19805, and the name of its registered
agent at such address is The Corporation Trust Company.
Section 2. OTHER OFFICES. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
Section 3. BOOKS. The books of the Corporation may be kept within or
without the State of Delaware as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE OF MEETINGS. All meetings of the stockholders shall be
held at such place either within or without the State of Delaware and on such
date and at such time as may be designated from time to time by the Board of
Directors. If the Board of Directors shall fail to fix such place, the meetings
shall be held at the principal executive office of the Corporation.
Section 2. ANNUAL MEETINGS. Annual meetings of stockholders shall be
held at a time and date designated by the Board of Directors for the purpose of
electing directors and transacting such other business as may properly be
brought before the meeting.
Section 3. SPECIAL MEETINGS. Special meetings of stockholders, for any
purpose or purposes, may be called by the Board of Directors, the Chairman of
the Board of Directors, the Chief Executive Officer, the President, or the
holders of shares entitled to cast not less than a majority of the votes at such
meeting. Special meetings may not be called by any other person.
Section 4. NOTIFICATION OF BUSINESS TO BE TRANSACTED AT MEETING.
(a) At any meeting of the stockholders, only such business shall be
conducted, and only such proposals shall be acted upon as shall have been
brought before the meeting (i) by, or at the direction of the Board of Directors
or (ii) by any stockholder who complies with the notice procedures set forth in
this Section (or for election of directors, with the notice provisions set forth
in Section 2 of Article III).
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(b) For a proposal to be properly brought before an annual meeting
by a stockholder, the stockholder must have given timely notice thereof in
writing to the Secretary. To be timely, a stockholder's notice must be
delivered to, or mailed and received at, the principal executive offices of
the Corporation not less than 60 days nor more than 90 days prior to the
scheduled annual meeting, regardless of any postponements, deferrals or
adjournments of that meeting to a later date; provided, however, that if less
than 70 days notice or prior public disclosure of the date of the scheduled
annual meeting is given or made, notice by the stockholder to be timely must
be so delivered or received no later than the close of business on the tenth
day following the earlier of the day on which such notice of the date of the
scheduled annual meeting was mailed or the day on which such public
disclosure was made.
(c) A stockholder's notice to the Secretary shall in addition set
forth as to each matter the stockholder proposes to bring before the meeting
(i) a brief description of the proposal desired to be brought before the
meeting and the reasons for conducting such business at the meeting, (ii) the
name and address, as they appear on the Corporation's books, of the
stockholder proposing such business, (iii) the class and number of shares
which are beneficially owned by the stockholder on the date of such
stockholder notice and (iv) any material interest of the stockholder in such
proposal.
(d) Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, the person presiding over any meeting of the
stockholders shall have the power and duty to determine whether a nomination
or any other business proposed to be brought before the meeting was made in
accordance with the procedures set forth in this Article II or Article III
and, if any proposed nomination or business is not in compliance with such
provisions, to declare that such defective proposal or nomination shall be
disregarded.
Section 5. NOTICE; WAIVER OF NOTICE. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of
the meeting shall be given which 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. Unless otherwise required by law, such notice
shall be given not less than ten nor more than 60 days before the date of the
meeting to each stockholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be given when deposited in the mail,
postage prepaid, directed to the stockholder at his address as it appears on
the records of the Corporation. A written waiver of any such notice signed by
the person entitled thereto, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when the person
attends the meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
Section 6. QUORUM; ADJOURNMENT. Except as otherwise required by law
or provided by the Certificate of Incorporation, the holders of a majority of
the capital stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall constitute a quorum for the
transaction of business at all meetings of the stockholders. If, however,
such quorum
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shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting of the time and place of the
adjourned meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally noticed. 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 entitled to vote at the meeting.
Section 7. VOTING. Except as otherwise required by law, or provided
by the Certificate of Incorporation or these Bylaws, any question brought
before any meeting of stockholders shall be decided by the vote of the
holders of a majority of the stock represented and entitled to vote thereat.
Unless otherwise provided in the Certificate of Incorporation, each
stockholder represented at a meeting of stockholders shall be entitled to
cast one vote for each share of the capital stock entitled to vote thereat
held by such stockholder. Such votes may be cast in person or by proxy, but
no proxy shall be voted on or after three years from its date, unless such
proxy provides for a longer period. Elections of directors need not be by
ballot unless the Chairman of the meeting so directs or unless a stockholder
demands election by ballot at the meeting and before the voting begins.
Section 8. STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Any action which may be taken at any annual or special meeting of
stockholders may be taken without a meeting and without prior notice, if a
consent in writing, setting forth the action so taken, is signed by the
holders of all of the outstanding shares of the Corporation. All such
consents shall be filed with the Secretary of the Corporation and shall be
maintained in the corporate records. Any stockholder giving a written
consent, or the stockholder's proxy holders, or a transferee of the shares or
a personal representative of the stockholder or their respective proxy
holders, may revoke the consent by a writing received by the Secretary of the
Corporation before written consents of the number of shares required to
authorize the proposed action have been filed with the Secretary.
Section 9. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer who
has charge of the stock ledger of the Corporation shall prepare and make, at
least ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to
the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall
also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder of the
Corporation who is present.
Section 10. STOCK LEDGER. The stock ledger of the Corporation shall
be the only evidence as to who are the stockholders entitled to examine the
stock ledger, the list required by Section 9 of this Article II or the books
of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
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Section 11. INSPECTORS OF ELECTION. In advance of any meeting of
stockholders, the Board of Directors may appoint one or more persons (who
shall not be candidates for office) as inspectors of election to act at the
meeting. If inspectors are not so appointed, or if an appointed inspector
fails to appear or fails or refuses to act at a meeting, the Chairman of any
meeting of stockholders may, and on the request of any stockholder or his
proxy shall, appoint inspectors of election at the meeting. In the event of
any dispute between or among the inspectors, the determination of the
majority of the inspectors shall be binding.
Section 12. ORGANIZATION. At each meeting of stockholders the
Chairman of the Board of Directors, if one shall have been elected, (or in
his absence or if one shall not have been elected, the Chief Executive
Officer) shall act as Chairman of the meeting. The Secretary (or in his
absence or inability to act, the person whom the Chairman of the meeting
shall appoint secretary of the meeting) shall act as secretary of the meeting
and keep the minutes thereof.
Section 13. ORDER OF BUSINESS. The order and manner of transacting
business at all meetings of stockholders shall be determined by the Chairman
of the meeting.
ARTICLE III
DIRECTORS
Section 1. POWERS. Except as otherwise required by law or provided
by the Certificate of Incorporation, the business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors.
Section 2. NUMBER AND ELECTION OF DIRECTORS. Unless otherwise
provided by the Certificate of Incorporation, the Board of Directors shall
consist of not less than 3 nor more than 9 members. The exact number of
authorized directors shall initially be 5 and, thereafter, shall be fixed
from time to time, within the foregoing limits, by resolution of the Board of
Directors. Directors shall be elected at each annual meeting of stockholders
and each director so elected shall hold office until his successor is duly
elected and qualified, or until his earlier death, resignation or removal.
Any director may resign at any time effective upon giving written notice to
the Board of Directors, unless the notice specifies a later time for such
resignation to become effective. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
If the resignation of a director is effective at a future time, the Board of
Directors may elect a successor prior to such effective time to take office
when such resignation becomes effective. Directors need not be stockholders.
Section 3. VACANCIES. Vacancies in the Board of Directors may be
filled by a majority of the remaining directors, though less than a quorum,
or by a sole remaining director, except that a vacancy created by the removal
of a director by the vote or written consent of the stockholders may be
filled only by the vote of a majority of the shares entitled to vote
represented at a duly held meeting at which a quorum is present, or by the
written consent of holders of a majority of the outstanding shares entitled
to vote. Each director so elected shall hold office until the next annual
meeting of the stockholders and until a successor has been elected and
qualified.
A vacancy or vacancies in the Board of Directors shall be deemed to
exist in the event of the death, resignation, or removal of any director, or
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if the authorized number of directors is increased, or if the stockholders
fail, at any meeting of stockholders at which any director or directors are
elected, to elect the number of directors to be voted for at that meeting.
The stockholders may elect a director or directors at any time to
fill any vacancy or vacancies not filled by the directors, but any such
election by written consent shall require the consent of a majority of the
outstanding shares entitled to vote.
No reduction of the authorized number of directors shall have the
effect of removing any director before that director's term of office expires.
Section 4. TIME AND PLACE OF MEETINGS. The Board of Directors shall
hold its meetings at such place, either within or without the State of
Delaware, and at such time as may be determined from time to time by the
Board of Directors.
Section 5. ANNUAL MEETING. The Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of
other business, as soon as practicable after each annual meeting of
stockholders, on the same day and at the same place where such annual meeting
shall be held. Notice of such meeting need not be given. In the event such
annual meeting is not so held, the annual meeting of the Board of Directors
may be held at such place, either within or without the State of Delaware, on
such date and at such time as shall be specified in a notice thereof given as
hereinafter provided in Section 7 of this Article III or in a waiver of
notice thereof.
Section 6. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held at such places within or without the State of Delaware
at such date and time as the Board of Directors may from time to time
determine and, if so determined by the Board of Directors, notices thereof
need not be given.
Section 7. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the Chief Executive
Officer, the President, by any Vice President, the Secretary or by any two
directors. Notice of the date, time and place of special meetings shall be
delivered personally or by telephone to each director or sent by first-class
mail or telegram, charges prepaid, addressed to each director at the
director's address as it is shown on the records of the Corporation. In case
the notice is mailed, it shall be deposited in the United States mail at
least five days before the time of the holding of the meeting. In case the
notice is delivered personally or by telephone or telegram, it shall be
delivered personally or by telephone or to the telegraph company at least 48
hours before the time of the holding of the meeting. The notice need not
specify the purpose of the meeting.
Section 8. QUORUM; VOTE REQUIRED FOR ACTION; ADJOURNMENT. Except as
otherwise required by law, or provided in the Certificate of Incorporation or
these Bylaws, a majority of the directors shall constitute a quorum for the
transaction of business at all meetings of the Board of Directors and the
affirmative vote of not less than a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of
Directors. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting, from time
to time, without notice other than announcement at the meeting, until a
quorum shall be present. A meeting at which a quorum is initially present may
continue to transact business, notwithstanding the withdrawal of directors,
if any action taken is approved by at least a majority of the required quorum
to conduct that meeting. When a meeting is adjourned to another time or place
(whether
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or not a quorum is present), 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 Board of Directors
may transact any business which might have been transacted at the original
meeting.
Section 9. ACTION BY WRITTEN CONSENT. Unless otherwise restricted by
the Certificate of Incorporation, any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all the members of the Board of Directors
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 of
Directors or committee.
Section 10. TELEPHONE MEETINGS. Unless otherwise restricted by the
Certificate of Incorporation, members of the Board of Directors of the
Corporation, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors or such committee, as the
case may be, by conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other.
Participation in a meeting pursuant to this Section 10 shall constitute
presence in person at such meeting.
Section 11. COMMITTEES. The Corporation shall have two committees,
designated and described in Sections 14 and 15 below. The Board of Directors
may, by resolution passed by a majority of the entire Board, designate one or
more additional committees, each committee to consist of one or more of the
directors of the Corporation. The Board of Directors may designate one or
more directors as alternate members of any such committee, who may replace
any absent or disqualified member at any meeting of the committee. In the
event of absence or disqualification of a member of a committee, and in the
absence of a designation by the Board of Directors of an alternate member to
replace the absent or disqualified member, the committee member or members
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 the absent or disqualified
member. Any committee, to the extent allowed by law and as provided in the
resolution establishing such committee, shall have and may exercise all the
power and authority of the Board of Directors in the management of the
business and affairs of the Corporation. Each committee shall report to the
Board of Directors when required.
Section 12. COMPENSATION. The directors may be paid such
compensation for their services as the Board of Directors shall from time to
time determine.
Section 13. INTERESTED DIRECTORS. No contract or transaction between
the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors
or officers, or have a financial interest, shall be void or voidable solely
for this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or the committee
thereof which authorizes the contract or transaction, or solely because his
or their votes are counted for such purpose if: (i) the material facts as to
his or their relationship or interest and as to the contract or transaction
are disclosed or are known to the Board of Directors or the committee, and
the Board of Directors or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or
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(ii) the material facts as to his or their relationship or interest and as to
the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof, or the
stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
Section 14. AUDIT COMMITTEE. The Corporation shall have an Audit
Committee of the Board of Directors, and such Audit Committee shall be
comprised of two or more outside directors of the Corporation, appointed by
the Board of Directors, which Audit Committee shall have the responsibility
of consulting with the Corporation's independent auditors concerning their
engagement and audit plan, and thereafter concerning the auditors' report and
management letter, and with the assistance of the independent auditors,
monitoring the adequacy of the Corporation's internal accounting controls.
Section 15. COMPENSATION COMMITTEE. The Corporation shall have a
Compensation Committee of the Board of Directors, and such Compensation
Committee shall be comprised of two or more outside directors of the
Corporation, appointed by the Board of Directors, which Compensation
Committee shall have the responsibility of evaluating, setting and adjusting
executive and key employee compensation and benefits.
ARTICLE IV
OFFICERS
Section 1. EXECUTIVE OFFICERS. The executive officers of the
Corporation shall be a Chief Executive Officer, a President, a Chief
Financial Officer and a Secretary. The Corporation may also have such other
executive officers, including one or more Vice Presidents, as the Board may
in its discretion appoint. The Board of Directors, if it so determines, may
appoint a Chairman of the Board and a Vice Chairman of the Board from among
its members. Any number of offices may be held by the same person.
Section 2. ELECTION, TERM OF OFFICE AND REMUNERATION. The executive
officers of the Corporation shall be elected annually by the Board of
Directors at the annual meeting or a regular meeting thereof. Each such
officer shall hold office at the discretion of the Board of Directors until
his successor is elected and qualified, or until his earlier death,
resignation or removal. The remuneration of all officers of the Corporation
shall be fixed by the Board of Directors. Any vacancy in any office shall be
filled in such manner as the Board of Directors shall determine.
Section 3. SUBORDINATE OFFICERS. In addition to the executive
officers enumerated in Section 1 of this Article IV, the Corporation may have
one more assistant treasurers and assistant secretaries and such other
subordinate officers, agents and employees as the Board of Directors may deem
necessary, each of whom shall hold office for such period as the Board of
Directors may from time to time determine. The Board of Directors may
delegate to any executive officer the power to appoint and to remove any such
subordinate officers, agents or employees.
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Section 4. REMOVAL. Except as otherwise delegated to an executive
officer with respect to subordinate officers, any officer may be removed,
with or without cause, at any time, by resolution adopted by the Board of
Directors. Such removal shall be without prejudice to the contractual rights
of such officer, if any, with the Corporation.
Section 5. RESIGNATIONS. Any officer may resign at any time by
giving written notice to the Board of Directors (or to a principal officer if
the Board of Directors has delegated to such principal officer the power to
appoint and to remove such officer). The resignation of any officer shall
take effect upon receipt of notice thereof or at such later time as shall be
specified in such notice; unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
Section 6. POWERS AND DUTIES. The Chief Executive Officer shall,
subject to the direction and control of the Board of Directors, be the
general manager of, and supervise and direct, the business and affairs of the
Corporation and the conduct of the officers of the Corporation. The Secretary
shall have the duty, among other things, to record the proceedings of the
meetings of stockholders and directors in a book kept for that purpose. The
other officers of the Corporation shall have such powers and perform such
duties incident to each of their respective offices and such other duties as
may from time to time be conferred upon or assigned to them by the Board of
Directors.
ARTICLE V
STOCK
Section 1. FORM OF CERTIFICATES. Every holder of stock in the
Corporation shall be entitled to have a certificate signed, in the name of
the Corporation (i) by the Chairman of the Board of Directors, the Chief
Executive Officer, the President or a Vice President and (ii) by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the Corporation, certifying the number of shares owned by him in
the Corporation.
Section 2. SIGNATURES. Any, or all, of the signatures on the
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with
the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
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Section 3. LOST CERTIFICATES. The Corporation may issue a new
certificate to be issued in place of any certificate theretofore issued by
the Corporation, alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate to
be lost, stolen or destroyed. The Corporation may, in its discretion and as a
condition precedent to the issuance of such new certificate, require the
owner of such lost, stolen, or destroyed certificate, or his legal
representative, to give the Corporation a bond (or other security) sufficient
to indemnify it against any claim that may be made against the Corporation
(including any expense or liability) on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate.
Section 4. TRANSFERS. Stock of the Corporation shall be transferable
in the manner prescribed by law and in these Bylaws or in any agreement with
the stockholder making the transfer. Transfers of stock shall be made on the
books of the Corporation only by the person named in the certificate or by
his attorney lawfully constituted in writing and upon the surrender of the
certificate therefor, which shall be cancelled before a new certificate shall
be issued.
Section 5. REGISTERED OWNERS. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise required by law.
ARTICLE VI
LIMITATION OF LIABILITY
No person shall be liable to the Corporation for any loss or damage
suffered by it on account of any action taken or omitted to be taken by him
as a director or officer of the Corporation 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 or, with respect to any criminal matter, had no reasonable
cause to believe that his conduct was unlawful.
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ARTICLE VII
INDEMNIFICATION
Section 1. ACTION OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION.
Subject to Section 3 of this Article VII, 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, and whether external or internal
to the Corporation, (other than a judicial action or suit brought by or in
the right of the Corporation) by reason of the fact that he is or was a
director or officer of the Corporation, or is or was serving at the request
of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise (all such persons being
referred to hereafter as an "Agent"), against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
if he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
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 which he reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, that he had reasonable cause to believe
that his conduct was unlawful.
Section 2. ACTION BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed judicial action or
suit brought by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was an Agent (as defined in
Section 1) against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation,
except that no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable to
the Corporation unless and only to the extent that the Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the Court of Chancery or other such
court shall deem proper.
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Section 3. DETERMINATION OF RIGHT OF INDEMNIFICATION. Any
indemnification under Sections 1 or 2 (unless ordered by a court) shall be
made by the Corporation unless a determination is reasonably and promptly
made (i) by the Board by a majority vote of a quorum consisting of directors
who are or were not parties to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders, that such person acted in bad faith
and in a manner that such person did not believe to be in or not opposed to
the best interests of the Corporation, or, with respect to any criminal
proceeding, that such person believed or had reasonable cause to believe that
his conduct was unlawful.
Section 4. INDEMNIFICATION AGAINST EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding the other provisions of this Article, to the extent that an
Agent has been successful on the merits or otherwise, including the dismissal
of an action without prejudice or the settlement of an action without
admission of liability, in defense of any proceeding or in defense of any
claim, issue or matter therein, such Agent shall be indemnified against all
expenses incurred in connection therewith.
Section 5. ADVANCES OF EXPENSES. Except as limited by Section 6 of
this Article VII, expenses incurred in defending or investigating any action,
suit, proceeding or investigation shall be paid by the Corporation in advance
of the final disposition of such matter, if the Agent shall undertake to
repay such amount in the event that it is ultimately determined, as provided
herein, that such person is not entitled to indemnification. However, no
advance shall be made by the Corporation if a determination is reasonably and
promptly made by the Board of Directors by a majority vote of a quorum of
disinterested directors, 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, that, based upon the facts known to the
Board or counsel at the time such determination is made, such person acted in
bad faith and in a manner that such person did not believe to be in or not
opposed to the best interest of the Corporation, or, with respect to any
criminal proceeding, that such person believed or had reasonable cause to
believe his conduct was unlawful. In no event shall any advance be made in
instances where the Board or independent legal counsel reasonably determines
that such person deliberately breached his duty to the Corporation or its
stockholders.
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Section 6. RIGHT OF AGENT TO INDEMNIFICATION UPON APPLICATION;
PROCEDURE UPON APPLICATION. Any indemnification under Sections 2, 3, and 4,
or advance under Section 5 of this Article VII, shall be made promptly and in
any event within 45 days, upon the written request of the Agent, unless with
respect to applications under Sections 2, 3, or 5, a determination is
reasonably and promptly made by the Board of Directors by a majority vote of
a quorum of disinterested directors that such Agent acted in a manner set
forth in such Sections as to justify the Corporation's not indemnifying or
making an advance to the Agent. In the event no quorum of disinterested
directors is obtainable, the Board of Directors shall promptly direct that
independent legal counsel shall decide whether the Agent acted in the manner
set forth in such Sections as to justify the Corporation's not indemnifying
or making an advance to the Agent. The right to indemnification or advances
as granted by this Article VII shall be enforceable by the Agent in any court
of competent jurisdiction if the Board or independent legal counsel denies
the claim, in whole or in part, or if no disposition of such claim is made
within 45 days. The Agent's expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
proceeding shall also be indemnified by the Corporation.
Section 7. OTHER RIGHTS AND REMEDIES. The indemnification provided
by this Article VII shall not be deemed exclusive of any other rights to
which an Agent seeking indemnification may be entitled under any Bylaw,
agreement, vote of stockholders or disinterested directors, court order or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, since it is the policy of the
Corporation that indemnification of Agents shall be made to the fullest
extent permitted by law. The indemnification provided by this Article shall
continue as to a person who has ceased to be an Agent and shall inure to the
benefit of the heirs, executors and administrators of such a person. All
rights to indemnification under this Article shall be deemed to be provided
by a contract between the Corporation and the Agent who serves in such
capacity at any time while these Bylaws and other relevant provisions of the
General Corporation Law of the State of Delaware and other applicable law, if
any, are in effect. Any repeal or modification thereof shall not affect any
rights or obligations then existing.
Section 8. INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was an Agent against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have
the power to indemnify him against such liability under the provisions of
this Article.
Section 9. INDEMNITY FUND. Upon resolution passed by the Board, the
Corporation may establish a trust or other designated account, grant a
security interest or use other means (including, without limitation, a letter
of credit), to ensure the payment of certain of its obligations arising under
this Article and/or agreements which may be entered into between the Company
and its officers and directors from time to time.
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Section 10. CONSTITUENT CORPORATIONS. For the purposes of this
Article, references to "the Corporation" include all constituent corporations
absorbed in a consolidation or merger as well as the resulting or surviving
corporation, so that any person who is or was a director or officer of such a
constituent corporation or is or was serving at the request of such
constituent corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise shall stand in the same
position under the provisions of this Article with respect to the resulting
or surviving corporation as he would had he served such constituent
corporation in the same capacity.
Section 11. OTHER ENTERPRISES, FINES, AND SERVING AT CORPORATION'S
REQUEST. For purposes of this Article, references to "other enterprise" in
Sections 1 and 10 shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed a person with respect to any employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director or officer of the Corporation which
imposes duties on, or involves services by, such director or officer with
respect to any employee benefit plan, its participants, or beneficiaries; and
a person who acted in good faith and in a manner he reasonably believed to be
in the interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the best
interests of the Corporation" as referred to in this Article.
Section 12. INDEMNIFICATION OF OTHER PERSONS. The provisions of this
Article VII shall not be deemed to preclude the indemnification of any person
who is not an Agent (as defined in Section 1), but whom the Corporation has
the power or obligation to indemnify under the provisions of the General
Corporation Law of the State of Delaware or otherwise. The Corporation may,
in its sole discretion, indemnify an employee, trustee or other agent as
permitted by the General Corporation Law of the State of Delaware. The
Corporation shall indemnify an employee, trustee or other agent where
required by law.
Section 13. SAVINGS CLAUSE. If this Article or any portion thereof
shall be invalidated on any ground by any court of competent jurisdiction,
then the Corporation shall nevertheless indemnify each Agent against 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, and whether internal or external, including
a grand jury proceeding and an action or suit brought by or in the right of
the Corporation, to the full extent permitted by any applicable portion of
this Article that shall not have been invalidated, or by any other applicable
law.
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ARTICLE VIII
RECORDS
Section 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER. The
Corporation shall keep at its principal executive office, or at the office of
its transfer agent or registrar, if either be appointed and as determined by
resolution of the Board of Directors, a record of its stockholders, giving
the names and addresses of all stockholders and the number and class of
shares held by each stockholder. A stockholder or stockholders of the
Corporation holding at least 5% in the aggregate of the outstanding voting
shares of the Corporation or who hold at least 1% of such voting shares and
have filed a Schedule 14B with the United States Securities and Exchange
Commission relating to the election of directors of the Corporation may (i)
inspect and copy the records of stockholders' names and addresses and
stockholdings during usual business hours on 5 days' prior written demand on
the Corporation, or (ii) obtain from the transfer agent of the Corporation,
on written demand and on the tender of such transfer agent's usual charges
for such list, a list of the stockholders' names and addresses, who are
entitled to vote for the election of directors, and their stockholdings, as
of the most recent record date for which that list has been compiled or as of
a date specified by the stockholder after the date of demand. This list shall
be made available to any such stockholder by the transfer agent on or before
the later of 5 days after the demand is received or the date specified in the
demand as the date as of which the list is to be compiled. The record of
stockholders shall also be open to inspection on the written demand of any
stockholder or holder of a voting trust certificate, at any time during usual
business hours, for a purpose reasonably related to the holder's interests as
a stockholder or as the holder of a voting trust certificate. Any inspection
and copying under this Section 1 may be made in person or by an agent or
attorney of the stockholder or holder of a voting trust certificate making
the demand.
Section 2. MAINTENANCE AND INSPECTION OF BYLAWS. The Corporation
shall keep at its principal executive office, the original or a copy of these
Bylaws, as amended, to date, which shall be open to inspection by the
stockholders at all reasonable times during office hours.
ARTICLE IX
GENERAL PROVISIONS
Section 1. DIVIDENDS. Subject to limitations contained in the
General Corporation Law of the State of Delaware and the Certificate of
Incorporation, the Board of Directors may declare and pay dividends upon the
shares of capital stock of the Corporation, which dividends may be paid
either in cash, securities of the Corporation or other property.
Section 2. DISBURSEMENTS. All checks or demands for money and notes
of the Corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time designate.
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Section 3. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 4. CORPORATE SEAL. The Corporation shall have a corporate
seal in such form as shall be prescribed by the Board of Directors.
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 entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors
may fix, in advance, a record date, which shall not be more than 60 days nor
less than ten days before the date of such meeting, nor more than 60 days
prior to any other action. 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. Stockholders on the
record date are entitled to notice and to vote or to receive the dividend,
distribution or allotment of rights or to exercise the rights, as the case
may be, notwithstanding any transfer of any shares on the books of the
Corporation after the record date, except as otherwise provided by agreement
or by applicable law.
Section 6. VOTING OF STOCK OWNED BY THE CORPORATION. The Board of
Directors may authorize any person, on behalf of the Corporation, to attend,
vote and grant proxies to be used at any meeting of stockholders of any
corporation (except this Corporation) in which the Corporation may hold stock.
Section 7. CONSTRUCTION AND DEFINITIONS. Unless the context requires
otherwise, the general provisions, rules of construction and definitions in
the General Corporation Law of the State of Delaware shall govern the
construction of these Bylaws.
Section 8. AMENDMENTS. Subject to the General Corporation Law of the
State of Delaware, the Certificate of Incorporation and these Bylaws, the
Board of Directors may by majority vote of those present at any meeting at
which a quorum is present amend or repeal these Bylaws, or enact other Bylaws
as in their judgment may be advisable for the regulation of the conduct of
the affairs of the Corporation. Unless otherwise restricted by the
Certificate of Incorporation, these Bylaws may be altered, amended or
repealed at any annual meeting of the stockholders (or at any special meeting
thereof duly called for that purpose) by a majority of the combined voting
power of the then outstanding shares of capital stock of all classes and
series of the Corporation entitled to vote generally in the election of
directors, voting as a single class, provided that, in the notice of any such
special meeting, notice of such purpose shall be given.
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CERTIFICATE OF SECRETARY
The undersigned does hereby certify that he is the secretary of eSynch
Corporation, a corporation duly organized and existing under and by virtue of
the laws of the state of Delaware; that the above and foregoing bylaws of
said corporation were duly and regularly adopted as such by the board of
directors of said corporation November 15, 1999, were duly and regularly
amended by the board of directors of said corporation November 3, 2000, and
that the above and foregoing bylaws are now in full force and effect and
supercede and replace any prior bylaws of the corporation,
Dated this 4th day of November, 2000
/s/ T. Richard Hutt
--------------------------------
T. Richard Hutt, Secretary
