FOURTH AMENDED AND RESTATED
BYLAWS
of
NEWSTATE HOLDINGS, INC.
(A Delaware Corporation)
Section 1.01 REGISTERED OFFICE AND AGENT. The registered
office and agent of the Corporation in Delaware shall be as designated by the
Board of Directors from time to time.
Section 1.02 OTHER OFFICES. The Corporation may establish and
maintain such other offices at such other places of business both within and
without the State of Delaware as the Board of Directors may from time to time
determine.
ARTICLE TWO
SHAREHOLDERS
Section 2.01 ANNUAL MEETING. The annual shareholders' meeting
for electing directors and transacting other business shall be held at such time
and place within or without the State of Delaware as may be designated by the
Board of Directors in a resolution and set forth in the notice of the meeting.
Failure to hold any annual shareholders' meeting at the designated time shall
not work a forfeiture or dissolution of the Corporation.
Section 2.02 SPECIAL MEETINGS. Special meetings of the
shareholders may be called by the Board of Directors, and shall be called by the
President or Secretary at the request in writing of shareholders owning not less
than one-tenth of all the shares entitled to vote at the proposed meeting. Such
request shall state the purpose or purposes of the proposed meetings. Business
transacted at any special meeting of shareholders shall be limited to the
purposes stated in the notice thereof.
Section 2.03 PLACE OF MEETING. All shareholders' meetings
shall be held at such place, within or without the State of Delaware as shall be
fixed from time to time by resolution of the Board of Directors.
Section 2.04 NOTICE OF MEETINGS. Written notice stating the
place, day and hour of the meeting, and in case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten days or more than sixty days before the date of the meeting either
personally or by mail, by or at the direction of the President, the Secretary or
the officer person calling the meeting , to each shareholder of record entitled
to vote at such meeting, except that if the authorized shares are to be
increased, at least thirty days notice shall be given. A notice shall be deemed
delivered:
(i) if mailed to a United States address three days after
being deposited in the United States mail, with
postage prepaid, addressed to the shareholder at the
address as it appears on the Corporation's record of
shareholders.
(ii) if mailed to an address outside the United States,
seven days after being deposited in the United States
mail with airmail postage prepaid, addressed to the
shareholder at the address as it appears on the
Corporation's record of shareholders.
Section 2.05 WAIVER OF NOTICE. Whenever any notice is required
to be given to any shareholder of the Corporation under the provisions of any
statute or under the provisions of the Certificate of Incorporation or these
Bylaws, a waiver thereof in writing signed by the person or persons entitled to
such notice or the holder of a proxy from such person or persons, whether
before, at or after the time stated therein, shall be equivalent to the giving
of such notice. Attendance of a shareholder at a meeting of shareholders shall
constitute a waiver of notice of such meeting, except when such shareholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened.
Section 2.06 ORGANIZATION. Meetings of the shareholders shall
be presided over by the Chairman of the Board of Directors, or if he is not
present or one has not been elected, by a Chairman PRO TEMPORE to be chosen by a
majority of the shareholders entitled to vote who are present in person or by
proxy at the meeting. The Secretary of the Corporation, or in his absence, an
Assistant Secretary, shall act as secretary of the meeting, or if neither the
Secretary nor any Assistant Secretary is present, a secretary PRO TEMPORE shall
be chosen by a majority of the shareholders entitled to vote who are present in
person or by proxy at the meeting.
Section 2.07 VOTING. Except as otherwise specifically provided
by the Certificate of Incorporation or by these Bylaws or by statute, all
matters coming before any meeting of shareholders shall be decided by the
affirmative vote of a majority of the issued and outstanding shares of Common
Stock. The vote upon any question shall be by ballot whenever requested by any
person entitled to vote, but, unless such a request is made, voting may be
conducted in anyway approved at the meeting.
Section 2.08 SHAREHOLDERS ENTITLED TO VOTE. Each shareholder
of the Corporation entitled to vote on a matter has the right to vote, in person
or by proxy, each share of Common Stock standing in his name on the books of the
Corporation on the record date fixed or determined pursuant to Section 6.08
hereof.
Section 2.09 PROXIES. The right to vote by proxy shall exist
only if the instrument authorizing such proxy to act shall have been executed in
writing by the shareholder himself or by his attorney-in-fact duly authorized in
writing. No proxy shall be valid after eleven months from the date of its
execution, unless otherwise provided in the proxy.
Section 2.10 QUORUM. The presence at any shareholders'
meeting, in person or by proxy, of the record holders of a majority of the
issued and outstanding shares of Common Stock entitled to vote (and not required
to abstain from voting) at the meeting shall be necessary and sufficient to
constitute a quorum for the transaction of business.
Section 2.11 ABSENCE OF QUORUM. In the absence of a quorum at
any shareholders' meeting, a majority of the total number of shares entitled to
vote at the meeting and present thereat, in person or by proxy, may adjourn the
meeting for a period not to exceed sixty days at any one adjournment. Any
business that might have been transacted at the meeting originally called may be
transacted at any such adjourned meetings at which a quorum is present.
Section 2.12 VOTING RECORD. The officer 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 record of the
shareholders entitled to vote at such meeting or any adjournment thereof,
arranged in alphabetical order, with the address of and the number of shares
held by each, which record, for a period of ten days before such meeting, shall
be kept on file at the principal office of the Corporation, whether within or
without the State of Delaware, and shall be subject to inspection by any
shareholder for any purpose germane to the meeting at any time during usual
business hours. Such record 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
for any purpose germane to the meeting during the time of the meeting. The
original stock transfer books shall be prima facie evidence as to who are the
shareholders entitled to examine such record or transfer books or to vote at any
meeting of shareholders. Failure to comply with the requirements of this Section
2.12 shall not affect the validity of any action taken at such meeting of
shareholders.
Section 2.13 ACTION BY SHAREHOLDERS WITHOUT A MEETING. Any
action required to be taken at a meeting of the shareholders of the Corporation
or any action which may be taken at such a meeting, may be taken without meeting
if a consent in writing, setting forth the action so taken, shall be signed and
dated by the shareholders having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted and delivered to the
Corporation within sixty days from the date the first such consent is delivered.
Section 2.14 MEETING BY CONFERENCE TELEPHONE. Any shareholder
may participate in a meeting of the shareholders of the Corporation by means of
a conference telephone or similar communications equipment by means of which all
persons participating in such meeting can hear each other and such participation
shall constitute the presence of such person at such meeting.
ARTICLE THREE
BOARD OF DIRECTORS
Section 3.01 NUMBER AND TERM OF OFFICE. Subject to Section
3.02 and 3.03, the Board of Directors of the Corporation shall consist of up to
six directors. Each director (whenever elected) shall hold office until his
successor shall have been elected and qualified unless he shall resign or his
office shall become vacant by his death or removal. Directors shall be natural
persons of the age of eighteen years or older, but need not be residents of the
State of Delaware or shareholders of the Corporation.
Section 3.02 ELECTION OF DIRECTORS. Except as otherwise
provided in Section 3.03 and 3.04 hereof and except as otherwise provided in the
Second Amended and Restated Certificate of Incorporation, the directors shall be
elected annually at the annual shareholders' meeting for the election of
directors by such shareholders as have the right to vote on such election. The
Chairman of the Board of Directors must be approved by vote of the Board of
Directors before his appointment. If the Chairman of the Board of Directors is
absent from a meeting of directors or is unwilling to act, the Chairman at that
meeting must be one of the directors elected by a majority of those directors
present at the meeting. The President of the Corporation must be approved by
vote of the Board of Directors before his appointment.
Section 3.03 REMOVAL OF DIRECTORS. At a meeting called
expressly for that purpose, any one or more or all of the directors may be
removed, with or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors.
Section 3.04 RESIGNATIONS. Any director may resign at any time
by mailing or delivering or by transmitting by telecopy machine written notice
of his resignation to the Board of Directors of the Corporation at the
Corporation's principal office or to the President, the Secretary or any
Assistant Secretary of the Corporation. Any such resignation shall take effect
at the time specified therein or if no time be specified, then at the time of
receipt thereof.
Section 3.05 VACANCIES. Any vacancy occurring in the Board of
Directors may be filled by 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 be elected for the unexpired term of his
predecessor in office and until his successor shall have been elected and
qualified. Any directorship to be filled by reason of an increase in the number
of directors shall be filled by the affirmative vote of a majority of the
directors then in office or by an election at an annual meeting or at a special
meeting of shareholders called for that purpose. A director chosen to fill a
position resulting from an increase in the number of directors shall hold such
position until the next annual meeting of shareholders and until his successor
shall have been elected and qualified.
Section 3.06 GENERAL POWERS. The business of the Corporation
shall be managed by the Board of Directors, which may exercise all such powers
of the Corporation and do all such lawful acts and things as are not by statute
or by the Second Amended and Restated Certificate of Incorporation directed or
required to be exercised or done by the shareholders.
Section 3.07 ANNUAL MEETINGS. The annual meeting of the Board
of Directors for electing officers and transacting other business shall be held
immediately after the annual shareholders' meeting at the place of such meeting.
Failure to hold any annual meeting of the Board of Directors of the Corporation
at the designated time shall not work a forfeiture or dissolution of the
Corporation.
Section 3.08 REGULAR MEETINGS. The Board of Directors from
time to time may provide by resolution for the holding of regular meetings and
fix the time and place of such meetings. Regular meetings may be held within or
without the State of Delaware.
Section 3.09 SPECIAL MEETINGS. Special meetings of the Board
of Directors may be called by the Chairman of the Board of Directors, if one be
elected, on seven days notice to each Director specifying the time and place
(within or without the State of Delaware) of the meeting, and shall be called by
the President or Secretary in like manner and on like notice on the written
request of a majority of the directors.
Section 3.10 NOTICE. Notices in respect of meetings referred
to under Sections 3.07, 3.08, and 3.09 must stipulate the agenda of business to
be transacted at the meeting. Where the failure to include an item of business
in the agenda does not preclude such item being dealt with at the meeting as
general business provided the consent of at least one-half of the number of
directors is obtained. All notices to a director required by Sections 3.07, 3.08
or 3.09 hereof shall be given to him at least seven (7) days prior to the date
of such meeting and shall be addressed to him at his residence or usual place of
business and may be given by mail, telegram, telecopy, facsimile, or by personal
delivery. No notice need be given of any adjourned meeting. A notice shall be
deemed delivered:
(i) if mailed to a United States address, three days
after being deposited in the United States mail, with
postage prepaid, addressed to the director as stated
above;
(ii) if mailed to an address outside the United States,
seven days after being deposited in the United States
mail, with airmail postage prepaid addressed to the
director as stated above.
Section 3.11 WAIVER OF NOTICE. Whenever any notice is required
to be given to any director of the Corporation under the provisions of any
statute or under the provisions of the Second Amended and Restated Certificate
of Incorporation or these Third Amended and Restated Bylaws, a waiver thereof-in
writing signed by the person or persons entitled to such notice, whether before,
at or after the time stated therein, shall be equivalent to the giving of such
notice. Attendance of a director at a meeting of the Board of Directors shall
constitute a waiver of notice of such meeting, except where a director attends
such a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened.
Section 3.12 QUORUM. At all meetings of the Board of
Directors, four members of the Board of Directors shall constitute a quorum for
the transaction of business. 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. In the absence of a quorum, the directors present thereat may adjourn
the meeting from time to time until a quorum be present and written notice of
such adjournment must be given to all directors.
Section 3.13 ACTION BY DIRECTORS WITHOUT A MEETING. Any action
required to be taken at a meeting of the directors of the Corporation or any
action which may be taken at such a meeting, may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all of
the directors. Such consent shall have the same force and effect as an unanimous
vote of the Board of Directors of the Corporation. A consent shall be sufficient
for this Section 3.13 if it is executed in counterparts, in which event all of
such counterparts, when taken together, shall constitute one and the same
consent.
Section 3.14 MEETING BY CONFERENCE TELEPHONE. Any director may
participate in a meeting of the Board of Directors by means of a conference
telephone or similar communications equipment by means of which all persons
participating in such meeting can hear each other, and such participation shall
constitute the presence of such person at such meeting.
Section 3.15 COMPENSATION. By resolution of the Board of
Directors, any director may be paid any one or more of the following: his
expenses, if any, of attendance at meetings; a fixed sum for attendance at
meetings; or stated salary as a director. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any capacity
as an officer, employee, agent or otherwise, and receiving compensation
therefor.
Section 3.16 RELIANCE ON ACCOUNTS AND REPORTS, ETC. A director
in the performance of his duties shall be fully protected in relying in good
faith upon the books of account or reports made to the Corporation by any of its
officers, or by an independent certified public accountant, or by an appraiser
selected with reasonable care by the Board of Directors or in relying in good
faith upon other records of the Corporation.
Section 3.17 PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the Board of Directors at which
action on any corporate matter is taken shall be presumed to have assented to
the action taken unless his dissent shall be entered in the minutes of the
meeting or unless he shall file his written dissent to such action with the
person acting as the Secretary of the meeting before the adjournment thereof, or
shall forward such dissent by registered or certified mail to the Secretary of
the Corporation within a reasonable time after the adjournment of the meeting.
Such right to dissent shall not apply to a director who voted in favor of such
action.
ARTICLE FOUR
COMMITTEES
Section 4.01 HOW CONSTITUTED. By unanimous vote of the Board
of Directors, the Board may designate one or more committees. 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
such committee. Any such committee, to the extent provided in the resolution and
except as may otherwise be provided by statute, shall have and may exercise the
powers of the Board of Directors in the management of the business and affairs
of the Corporation and may authorize the seal of the Corporation to be affixed
to all papers which may require it, provided, however, that no such committee
shall have the authority of the Board of Directors in reference to amending the
Second Amended and Restated Certificate of Incorporation, adopting a plan of
merger or consolidation, recommending to the shareholders the sale, lease,
exchange or other disposition of all or substantially all of the property and
assets of the Corporation otherwise than in the usual course of its business,
recommending to the shareholders a voluntary dissolution of the Corporation or a
revocation thereof, or amending the Third Amended and Restated Bylaws of the
Corporation. The designation of such committee and the delegation thereto of
authority shall not operate to relieve the Board of Directors, or any member
thereof, of any responsibility imposed upon it or him by law. In the absence or
disqualification of any member of any such committee, the Board of Directors may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
Section 4.02 PROCEEDINGS, QUORUM AND MANNER OF ACTING. Except
as otherwise prescribed by the Board of Directors, each committee may adopt such
rules and regulations governing its proceedings, quorum and manner of acting as
it shall deem proper and desirable, provided that the quorum shall not be less
than a majority of the committee members.
ARTICLE FIVE
OFFICERS AND AGENTS
Section 5.01 OFFICERS. The officers shall consist of a
Chairman of the Board, a President, and a Secretary, each of whom shall be
elected by the Board of Directors. The Board of Directors may elect and appoint
such other officers, assistant officers and agents as may be deemed necessary
and may delegate to one or more officers or agents the power to appoint such
other officers, assistant officers and agents and to prescribe their respective
rights, terms of office, authorities and duties. Any two or more offices of the
Corporation may be held by the same person, except the offices of President and
Secretary. An officer of the Corporation need not be a director of the
Corporation nor resident of the State of Delaware. The officers of the
Corporation shall be natural persons of the age of eighteen years or older.
Section 5.02 TERM OF OFFICE. Except as provided in Sections
5.03, 5.04, and 5.05 hereof, each officer appointed by the Board of Directors
shall hold office until his successor shall have been appointed and qualified.
Section 5.03 RESIGNATION. Any officer or agent of the
Corporation may resign at any time by mailing or delivering or transmitting by
telecopy written notice of his resignation to the Board of Directors of the
Corporation at the Corporation's principal office or to the President, the
Secretary or any Assistant Secretary of the Corporation. Any such resignation
shall take effect at the time specified therein or if no time be specified, then
at the time of receipt thereof.
Section 5.04 REMOVAL. Any officer or agent may be removed by
the Board of Directors, either with or without cause, whenever in its judgment,
the best interests of the Corporation will be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed. Election or appointment of an officer or agent shall not of itself
create contract rights. In addition, any other officer, assistant officer or
agent appointed in accordance with the delegation provisions of Section 5.01
hereof may be removed, either with or without cause, by any such officer or
agent upon who such power of delegation shall have been conferred by the Board
of Directors.
Section 5.05 VACANCIES AND NEWLY CREATED OFFICES. If any
vacancy shall occur in any office by reason of death, resignation, removal,
disqualification or other cause, or if any new office shall be created, such
vacancies or newly created offices may be filled by the Board of Directors at
any regular or special meeting or may be filled by an officer or agent to whom
the power is delegated in accordance with the delegation provisions of Section
5.01 hereof.
Section 5.06 CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman
of the Board of Directors shall, when present, preside at all meetings of
shareholders and of the Board of Directors. In general, he shall perform all
duties incident to the office of Chairman of the Board of Directors and such
other duties as from time to time may be assigned to him by the Board of
Directors, or as prescribed herein.
Section 5.07 PRESIDENT. The President shall be the chief
executive officer and chief operating officer of the Corporation unless the
Board of Directors designates one or more other officers to fill such offices.
As chief executive officer of the Corporation, he shall have general charge,
supervision and authority over the property, affairs and business of the
Corporation, and over its several offices, subject, however, to the control of
the Board of Directors. As chief operating officer, he shall have general and
active management of the day-to-day business of the Corporation. He shall have
authority to cause the employment or appointment of such employees and agents of
the Corporation (other than officers or agents elected or appointed by the Board
of Directors) as the conduct of the business of the Corporation may require, and
to fix their compensation and to remove or suspend any employee or agent who
shall not have been appointed by the Board of Directors. He shall see that all
orders and resolutions of the Board of Directors are carried into effect and in
general shall perform all duties as may from time to time be assigned to him by
the Board of Directors.
Section 5.08 VICE PRESIDENTS. The Vice Presidents, if any,
shall perform such duties and possess such powers as from time to time may be
assigned to them by the Board of Directors or the President. In the absence of
the President or in the event of his inability or refusal to act, the Vice
President (or in the event there be more than one Vice President, the Vice
Presidents in the order designated by the Board of Directors, or in the absence
of any designation, then in the order of their election or appointment) shall
perform the duties of the President and when so performing shall have all the
powers of and be subject to all the restrictions upon the President.
Section 5.09 SECRETARY AND ASSISTANT SECRETARIES. The
Secretary shall attend to the giving and serving of all notices of the
Corporation and shall record all the proceedings of all meetings of the
shareholders and of the Board of Directors in a book to be kept for that
purpose. He shall keep in safe custody the seal of the Corporation, and shall
have charge of the records of the Corporation, including the stock books and
such other books and papers as the Board of Directors may direct and such books,
reports, certificates and other documents required by law to be kept, all of
which shall at all reasonable times be open to inspection by any director. He
shall sign (unless an Assistant Secretary shall have signed) certificates
representing stock of the Corporation authorized for issuance by the Board of
Directors. He shall perform such other duties as appertain to this office or as
may be required by the Board of Directors. Any Assistant Secretary may perform
such duties of the Secretary as the Secretary or the Board of Directors may
properly assign, and, in the absence of the Secretary, any Assistant Secretary
may perform all the duties of the Secretary.
Section 5.10 REMUNERATION. The salaries or other compensation
of the officers of the Corporation shall be determined by the Board of
Directors, except that the Board of Directors may by resolution delegate to any
officer or agent the power to fix salaries or other compensation of any other
officer, assistant officer or agent appointed in accordance with the delegation
provisions of Section 5.01 hereof.
Section 5.11 SURETY BONDS. The Board of Directors may require
any officer or agent of the Corporation to execute a bond to the Corporation in
such sum and with such surety or sureties as the Board of Directors may
determine, conditioned upon the faithful performance of his duties to the
Corporation, including responsibility for negligence and for the accounting of
any of the Corporation's property, funds or securities that may come into his
hands.
ARTICLE SIX
CAPITAL STOCK
Section 6.01 SIGNATURES. The shares of the Corporation's
capital stock shall be represented by certificates signed by the President or a
Vice President and the Secretary or an Assistant Secretary of the Corporation
and shall be sealed with the seal of the Corporation, or a facsimile thereof.
The signatures of the President or a Vice-President and of the Secretary or an
Assistant Secretary upon certificates may be facsimiles if the certificate is
countersigned by a transfer agent, or registered by a registrar, other than the
Corporation itself or an employee of the Corporation. In case any officer who
has signed or whose facsimile signature has been placed upon such certificates
shall have ceased to be such officer before such certificate is issued, it may
be issued by the Corporation with the same effect as if he were such officer at
the date of its issue.
Section 6.02 CERTIFICATES. Each certificate representing
shares of the Corporation shall state upon the face thereof: (a) that the
Corporation is organized under the laws of the State of Delaware; b) the name of
the person to whom such certificate is issued; (c) the number and class of
shares which such certificate represents; and (d) the par value of each share
represented by such certificate, or a statement that the shares are without par
value. Each certificate shall also set forth conspicuously on the face or back
thereof such restrictions upon transfer, or a reference thereto, as shall be
adopted by the Board of Directors and shareholders, or as otherwise required by
law. No certificate shall be issued for any shares until such shares are fully
paid.
Section 6.03 CLASSES OF STOCK. If the Corporation is, or shall
become, authorized to issue shares of more than one class, then in addition to
the provisions of Section 6.02 hereof, every certificate representing shares
issued by the Corporation shall also set forth upon the face or back of the
certificate, or shall state that the Corporation will furnish to any shareholder
upon request and without charge, a full statement of the designations,
preferences, limitations and relative rights of the shares of each class
authorized to be issued and, if the Corporation is, or shall become, authorized
to issue any preferred or special class in series, the variations in the
relative rights and preferences between the shares of each such series so far as
the same have been fixed and determined and the authority of the Board of
Directors to fix and determine the relative rights and preferences of subsequent
series.
Section 6.04 CONSIDERATION FOR SHARES. Shares having a par
value may be issued for such consideration expressed in dollars, not less than
the par value thereof, as shall be fixed from time to time by the Board of
Directors. Shares without par value may be issued for such consideration
expressed in dollars as may be fixed from time to time by the Board of
Directors. Treasury shares may be disposed of by the Corporation for such
consideration expressed in dollars as may be fixed from time to time by the
Board of Directors. The consideration for the issuance of shares may be paid, in
whole or in part, in money, in other property or rights, tangible or intangible,
or in labor or services actually performed for the Corporation. Neither
promissory notes nor future services shall constitute payment or part payment
for shares of the Corporation.
Section 6.05 TRANSFER OF CAPITAL STOCK. Transfers of shares of
stock of the Corporation shall be made on the books of the Corporation upon
surrender of the certificate or certificates, properly endorsed or accompanied
by proper instruments of transfer, representing such shares, subject to the
terms of any agreements among the Corporation and shareholders or other
restrictions imposed by law.
Section 6.06 REGISTERED SHAREHOLDERS. Prior to due presentment
for registration or transfer of shares of stock, the Corporation may treat the
person registered on its books as the absolute owner of such shares of stock for
all purposes and, accordingly, shall not be bound to recognize any legal,
equitable or other claim or interest in such shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise expressly provided by statute; provided, however, that whenever any
transfer of shares shall be made for collateral security and not absolute, it
shall be so expressed in the entry of the transfer if, when the certificates are
presented to the Corporation for transfer, both the transferor and transferee
requisition the Corporation to do so.
Section 6.07 TRANSFER AGENTS AND REGISTRARS. The Board of
Directors may, from time to time, appoint or remove one or more transfer agents
or one or more registrars of transfers of shares of stock of the Corporation,
and it may appoint the same person as both transfer agent and registrar. Upon
any such appointment being made, all certificates representing shares of capital
stock thereafter issued shall be countersigned by one of such transfer agents or
one of such registrars of transfers and shall not be valid unless so
countersigned. If the same person shall be both transfer agent and registrar,
only one countersignature by such person shall be required.
Section 6.08 FIXING OR DETERMINATION OF RECORD DATE. The Board
of Directors may fix, in advance, a date as a record date for the determination
of the shareholders entitled to notice of, and to vote at, any meeting of
shareholders and any adjournment thereof, or entitled to receive payment of any
dividend or any other distribution or allotment of right, or entitled to
exercise rights in respect of any change, conversion, or exchange of capital
stock, or entitled to give any consent for any purpose, or in order to make a
determination of shareholders for any other proper purpose; provided, however,
that such record date shall be a date not more than 50 days nor less than 10
days before the date of such meeting of shareholders or the date of such other
action, except for an action by written consent pursuant to Section 2.13. If the
Board of Directors does not fix a record date as above provided, then the record
date shall be established by statute. In the case of a shareholder action by
written consent pursuant to Section 2.13, the record date shall be the date set
by the Board of Directors, which shall not be more than ten days after the date
the resolution is adopted, or if no such date is set and prior director action
is not required, the first date on which a signed written consent setting forth
the action taken or proposed to be taken is properly delivered to the
Corporation. A determination of shareholders of record entitled to notice of or
to vote at a meeting of shareholders shall apply to any adjournment of such
meeting, provided, however, that the Board of Directors may fix the new record
date for the adjourned meeting. If such a record date is fixed, only such
shareholders as shall be shareholders of record on the record date so fixed
shall be entitled to such notice of, and to vote at, such meetings and any
adjournments thereof, or to receive payment of such dividend or other
distribution, or to receive such allotment of rights or to exercise such rights,
or to give such consent, as the case may be notwithstanding any transfer of any
shares on the books of the Corporation after any such record date.
Section 6.09 LOST OR DESTROYED CERTIFICATES. The Board of
Directors may direct that a new certificate or certificates of stock be issued
in place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of the fact by the person claiming the certificate or certificates
to be lost, stolen or destroyed. When authorizing such issue of a new
certificate or certificates, the Board of Directors may, at its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require and to
give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the corporation with respect to the
certificate or certificates alleged to have been lost, stolen or destroyed.
Section 6.10 REGULATION S OFFERINGS. The Corporation shall
refuse to register any transfer of the Corporation's securities not made in
accordance with the provisions of Regulation S adopted under the Securities Act
of 1933 (the "Securities Act"), pursuant to registration under the Securities
Act, or pursuant to an available exemption from registration; provided, however,
that if such securities are in bearer form or foreign law prevents this
Corporation from refusing to register securities transfers, other reasonable
procedures shall be implemented to prevent any transfer of the securities not
made in accordance with the provisions of Regulation S. This Section 6.10 shall
only apply to securities of this Corporation issued pursuant to the provisions
of Regulation S of the Securities Act.
ARTICLE SEVEN
EXECUTION OF INSTRUMENTS: FINANCE
Section 7.01 EXECUTION OF INSTRUMENTS. The Chairman of the
Board of Directors, the President or any Vice President shall have the power to
execute and deliver on behalf of and in the name of the Corporation any
instrument requiring the signature of an officer of the Corporation, except as
otherwise provided in these Bylaws or where the execution and delivery thereof
shall be expressly delegated by the Board of Directors to some other officer or
agent of the Corporation. Unless authorized to do so by these Bylaws or by the
Board of Directors, no officer, agent or employee shall have any power or
authority to bind the Corporation in any way, to pledge its credit or to render
it liable pecuniarily for any purpose or in any amount.
Section 7.02 BORROWING. No loan shall be contracted on behalf
of the Corporation, and no evidence of indebtedness shall be issued, endorsed or
accepted in its name, unless authorized by the Board of Directors or a committee
designated by the Board of Directors so to act. Such authority may be general or
confined to specific instances. When so authorized, the officer or officers
thereunto authorized may effect loans at any time for the Corporation from any
bank or other entity and for such loans may execute and deliver promissory notes
or other evidences of indebtedness of the Corporation, and when authorized as
aforesaid, as security for the payment of any and all loans (and any obligations
incident thereto) of the Corporation, may mortgage, pledge or otherwise encumber
any real or personal property, or any interest therein, at any time owned or
held by the corporation, and to that end may execute and deliver such instrument
as may be necessary or proper in the premises.
Section 7.03 LOANS TO DIRECTORS, OFFICERS AND EMPLOYEES. The
Corporation may lend money to, guarantee the obligations of and otherwise assist
directors, officers and employees of the Corporation, or directors of another
corporation of which the Corporation owns a majority of the voting stock
whenever, in the judgment of the directors, such loan, guaranty or assistance
may reasonably be expected to benefit the Corporation. The loan, guaranty or
other assistance may be with or without interest, and may be unsecured, or
secured in such manner as the Board of Directors shall approve.
Section 7.04 CHECKS AND ENDORSEMENTS. All checks, drafts or
other orders for the payment of money, obligations, notes or other evidences of
indebtedness, bills of lading, warehouse receipts, trade acceptances and other
such instruments shall be signed or endorsed by the Chairman of the Board of
Directors, the President or any Vice President or such other officers or agents
of the Corporation as shall from time to time be determined by resolution of the
Board of Directors, which resolution may provide for the use of facsimile
signatures.
Section 7.05 DEPOSITS. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the Corporation's
credit in such banks or other depositories as shall from time to time be
determined by resolution of the Board of Directors, which resolution may specify
the officers or agents of the Corporation who shall have the power, and the
manner in which such power shall be exercised, to make such deposits and to
endorse, assign and deliver for collection and deposit checks, drafts and other
orders for the payment of money payable to the Corporation or its order.
Section 7.06 PROXIES. Unless otherwise provided by resolution
adopted by the Board of Directors, the Chairman of the Board of Directors, the
President or any Vice President may from time to time appoint one or more agents
or attorneys in fact of the Corporation, in the name and on behalf of the
Corporation, to cast the votes which the Corporation may be entitled to cast as
the holder of stock or other securities in any other corporation, association or
other entity any of whose stock or other securities may be held by the
Corporation, at meetings of the holders of the stock or other securities of such
other corporation, association or other entity, or to consent in writing, in the
name of the Corporation as such holder, to any action by such other corporation,
association or other entity, and may instruct the person or persons so appointed
as to the manner of casting such votes or giving such consent, and may execute
or cause to be executed in the name and on behalf of the Corporation and under
its corporate seal, or otherwise, all such written proxies or other instruments
as he may deem necessary or proper in the premises.
Section 7.07 FISCAL YEAR. The fiscal year of the Corporation
shall be such as may from time to time be established by the Board of Directors.
ARTICLE EIGHT
LIABILITY: INDEMNIFICATION
Section 8.01 EXCULPATION. No director or officer of the
Corporation shall be liable for the acts, defaults or omissions of any other
director or officer, or for any loss sustained by the Corporation, unless the
same has resulted from his own willful misconduct, willful neglect or gross
negligence.
Section 8.02 INDEMNIFICATION FOR ACTION, ETC, OTHER THAN 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 action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner which such person 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 the conduct which was taken 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 such person did not act in good faith and in a manner which such person
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 such
person had reasonable cause to believe that the conduct which was taken was
unlawful.
Section 8.03 INDEMNIFICATION FOR ACTIONS, ETC, 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 action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit
if such person acted in good faith and in a manner such person 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 such other court shall deem proper.
Section 8.04 DETERMINATION OF RIGHT TO INDEMNIFICATION. Any
indemnification under Section .8.02 or 8.03 (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because such person has met the applicable
standard of conduct set forth in Sections 8.02 or 8.03. Such determination shall
be made (i) by a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, or (ii) if there are
no such directors, or if such directors so direct, by independent legal counsel
in a written opinion, or (iii) by the stockholders.
Section 8.05 INDEMNIFICATION AGAINST EXPENSES OF SUCCESSFUL
PARTY. Notwithstanding the other provisions of this Article Eight, to the extent
that a director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 8.02 or 8.03, or in defense of any claim,
issue or matter therein, such person shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection therewith.
Section 8.06 ADVANCE EXPENSES. Expenses incurred in defending
a civil, criminal, administrative, or investigative action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the
Corporation as authorized in this Article Eight and a written affirmation of
such person's good faith belief that such person has satisfied the standard of
conduct required for indemnification. The undertaking required by this Section
shall be an unlimited general obligation of the director, officer, employee or
agent, but need not be secured and may be accepted without reference to
financial ability to make repayment.
Section 8.07 OTHER RIGHTS AND REMEDIES. The indemnification
provided by this Article Eight shall not be deemed exclusive of any other rights
to which those seeking indemnification may be entitled under any Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in such person's official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Section 8.08 INSURANCE. Upon resolution passed by the Board,
the Corporation may purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such person's status as
such, whether or not the Corporation would have the power to indemnify such
person against such liability under the provisions of this Article Eight.
Section 8.09 CONSTITUENT CORPORATIONS. For the purposes of
this Article Eight, 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, officer,
employee or agent of such a constituent corporation or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise shall stand in the same position under the provisions of this Article
Eight with respect to the resulting or surviving corporation as such person
would if such person had served the resulting or surviving corporation in the
same capacity.
Section 8.10 EXPENSES AS A WITNESS. Nothing in this Article
Eight shall limit the Corporation's power to pay or reimburse expenses incurred
by a director, officer, employee or agent of the Corporation in connection with
his appearance as a witness in a proceeding at a time when he has not been made
a named defendant or respondent in the proceeding.
ARTICLE NINE
MISCELLANEOUS
Section 9.01 SEAL. The corporate seal of the Corporation shall
be circular in form and shall bear the name of the Corporation. The form of the
seal shall be subject to alteration by the Board of Directors and the seal may
be used by causing it or a facsimile to be impressed or affixed or printed or
otherwise reproduced. Any officer or director of the Corporation shall have the
authority to affix the corporate seal of the Corporation to any document
requiring the same.
Section 9.02 BOOKS AND RECORDS. The Board of Directors shall
have power from time to time to determine whether and to what extent, and at
what times and places and under what conditions and regulations, the accounts
and books of the Corporation (other than the stock ledger), or any of them,
shall be open to the inspection of shareholders or, if applicable, holders of
voting trust certificates. No shareholders or holder of voting trust
certificates shall have any right to inspect any account, book or document of
the Corporation except at a time conferred by statue, unless authorized by a
resolution of the shareholders or the Board of Directors.
Section 9.03 WAIVERS OF NOTICE. Whenever any notice is
required to be given by law, or under the provisions of the Second Amended an
Restated Certificate of Incorporation or of these Third Amended and Restated
Bylaws, 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 deemed
equivalent of notice.
Section 9.04 AMENDMENTS. Subject to repeal or change by action
of the shareholders, the Board of Directors shall have the power to make, alter
or repeal these Third Amended and Restated Bylaws, in whole or in part, at any
time and from time to time only upon the affirmative vote of a majority of the
directors at a meeting of the Board of Directors.
<PAGE>
APPROVED AND ADOPTED by unanimous consent of the Board of
Directors as of this 22nd day of July, 1999.
/s/ Ernest B. Kim /s/ Jin K. Kim
-------------------------------------------- --------------
Ernest B. Kim, Director Jin K. Kim, Director
/s/ Ben Chang /s/ Edward Tobin
Ben Chang, Director Edward Tobin, Director
/s/ Sun W. Young
Sun W. Young, Director
