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EXHIBIT 3.3
BY-LAWS
of
KOPR RESOURCES CORP.
A Delaware Corporation
ARTICLE I - OFFICES
1.1 Registered Office. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
1.2 Additional 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.
ARTICLE II - MEETINGS OF STOCKHOLDERS
2.1 Location of Meetings. All meetings of the stockholders for the election
of directors shall be held in the State of Delaware, at such place as may be
fixed from time to time by the Board of Directors, or at such other place either
within or without the State of Delaware as shall be designated from time to time
by the Board of Directors and stated in the notice of the meeting. Meetings of
stockholders for any other purpose may be held at such time and place, within or
without the State of Delaware, as shall be stated in the notice of the meeting
or in a duly executed waiver of notice thereof.
2.2 Annual Meetings. Annual meetings of stockholders shall be held each
year in the month of May, unless otherwise directed by the Board of Directors,
at such date and time as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting, at which the common
stockholders shall elect by a plurality vote a Board of Directors, and transact
such other business as may properly be brought before the meeting. "Common
Stockholders" shall mean the holders of Common Stock of the corporation as duly
reflected on the stock ledger of the corporation.
2.3 Notice of Meetings. Written notice of the annual meeting stating the
place, date and hour of the meeting, and the means by which any remote
communications shall be utilized for purposes of attending and participating in
such meeting, shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) days nor more than sixty (60) days before the
date of the meeting.
2.4 Participation and Attendance at Meetings. If the directors shall
provide for the participation of meetings of stockholders by means of remote
communication, stockholders shall be considered present and may participate and
vote in the meeting if they shall avail themselves of such remote communication
services provided for by the directors. Any such meeting conducted in whole or
in part by means of remote communication shall be conducted by reasonable
measures as directed by the directors to ensure verification of participating
and voting is by a stockholder and that stockholders shall have a reasonable
opportunity to participate in the meeting and vote on matters submitted to the
stockholders for which they are entitled to vote, including an opportunity to
read or hear the proceedings of the meeting substantially concurrently with such
proceedings, and if any stockholder votes or takes other action at the meeting
by means of remote communication, a record of such vote or other action shall be
maintained by the corporation.
2.5 Stockholder Records. The officer who has charge of the stock ledger of
the corporation shall prepare and make, at least ten (10) 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 for a period of at least ten (10) days prior to the
meeting, either (a) on a reasonably accessible electronic network, with
sufficient access information contained in the notice of such meeting or (b)
during normal business hours at the principal place of business of the
corporation. 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 who is present.
2.6 Calling of Special Meetings. Unless otherwise prescribed by statute or
by the certificate of incorporation, special meetings of the stockholders
entitled to vote on the matter, for any purpose or purposes, may be called by
the Chief Executive Officer or President and shall be called by the Chief
Executive Officer, President or Secretary at the request in writing of a
majority of the Board of Directors, or at the request in writing of stockholders
owning twenty percent (20%) of the entire capital stock of the corporation
issued and outstanding and entitled to vote on the matter. Such request shall
state the purpose or purposes of the proposed meeting.
2.7 Notice of Special Meetings. Written notice of a special meeting stating
the place, date and hour of the meeting, and the means by which any remote
communications shall be utilized for purposes of attending and participating in
such meeting, and the purpose or purposes for which the meeting is called, shall
be given not less than ten (10) nor more than sixty (60) days before the date of
the meeting, to each stockholder entitled to vote at such meeting.
2.8 Purpose of Meetings. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
2.9 Quorum. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum 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, 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
notified. If the adjournment is for more than thirty days, or if after the
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adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
2.10 Voting Approval. When a quorum is present at any meeting, the vote of
the holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
2.11 Voting. Unless otherwise provided in the Certificate of Incorporation,
each stockholder having voting power on the matter shall at every meeting of the
stockholders be entitled to one (1) vote in person or by proxy for each share of
the capital stock having voting power held by such stockholder. At any meeting
of the stockholders, every stockholder entitled to vote may vote in person or by
proxy authorized by an instrument in writing or by a transmission permitted by
law filed in accordance with the procedure established for the meeting, but no
proxy shall be voted on after three (3) years from its date, unless the proxy
provides for a longer period. Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission created pursuant to this
paragraph may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used; provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission. All voting may (except where otherwise required by law)
be by a voice vote; provided, however, that upon demand therefor by a
stockholder entitled to vote or by his or her proxy, a stock vote shall be
taken. The corporation may, and to the extent required by law shall, in advance
of any meeting of stockholders, appoint one or more inspectors to act at the
meeting, count the votes, decide the results and make a written report thereof.
The corporation may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate is able to
act at a meeting of stockholders, the person presiding at the meeting may, and
to the extent required by law shall, appoint one or more inspectors to act at
the meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath to faithfully execute the duties of
inspector with strict impartiality and according to the best of his or her
ability.
2.12 Action without Meeting. Unless otherwise provided in the Certificate
of Incorporation, any action required to be taken at any annual or special
meeting of stockholders of the corporation, or any action which may be taken at
any annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. A telegram, cablegram or other electronic
transmission consenting to an action to be taken and transmitted by a
stockholder, or by a person or persons authorized to act for a stockholder,
shall be deemed to be written, signed and dated for the purposes of this
section, provided that any such telegram, cablegram or other electronic
transmission sets forth or is delivered with information from which the
corporation can determine (a) that the telegram, cablegram or other electronic
transmission was transmitted by the stockholder or by a person or persons
authorized to act for the stockholder and (b) the date on which such stockholder
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or authorized person or persons transmitted such telegram, cablegram or
electronic transmission. The date on which such telegram, cablegram or
electronic transmission is transmitted shall be deemed to be the date on which
such consent was signed. No consent given by telegram, cablegram or other
electronic transmission shall be deemed to have been delivered until such
consent is reproduced in paper form and until such paper form shall be delivered
to the corporation by delivery to its registered office in this State, its
principal place of business or an officer or agent of the corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to a corporation's registered office shall be made by
hand or by certified or registered mail, return receipt requested.
Notwithstanding the foregoing limitations on delivery, consents given by
telegram, cablegram or other electronic transmission, may be otherwise delivered
to the principal place of business of the corporation or to an officer or agent
of the corporation having custody of the book in which proceedings of meetings
of stockholders are recorded if, to the extent and in the manner provided by
resolution of the Board of Directors of the corporation. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent of stockholders entitled to vote or consent on the matter shall be given
to those stockholders who have not consented in writing and who, if the action
had been taken at a meeting, would have been entitled to notice of the meeting
if the record date for such meeting had been the date that written consents
signed by a sufficient number of holders or members to take the action were
delivered to the corporation.
2.13 Presiding Over Meetings. The Chairman of the Board of Directors shall
preside at all meetings of the stockholders. In the absence or inability to act
of the Chairman, the Vice Chairman, the Chief Executive Officer, the President
or a Vice President (in that order) shall preside, and in their absence or
inability to act, another person designated by one of them shall preside. The
Secretary of the corporation shall act as Secretary of each meeting of the
stockholders. In the event of his or her absence or inability to act, the
Chairman of the meeting shall appoint a person who need not be a stockholder to
act as Secretary of the meeting.
2.14 Conducting Meetings. Meetings of the stockholders shall be conducted
in a fair manner but need not be governed by any prescribed rules of order. The
presiding officer of the meeting shall establish an agenda for the meeting. The
presiding officer's rulings on procedural matters shall be final. The presiding
officer is authorized to impose reasonable time limits on the remarks of
individual stockholders and may take such steps as such officer may deem
necessary or appropriate to assure that the business of the meeting is conducted
in a fair and orderly manner.
ARTICLE III - DIRECTORS
3.1 Directors. The number of directors which shall constitute the whole
board shall be not less than one or more than seven. The first board shall
consist of one director. Thereafter, within the limits above specified, the
number of directors shall be determined by resolution unanimously approved by
the Board of Directors or, in the absence of a determination by the Board of
Directors, then by the Common Stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the Common Stockholders, except as
provided in Section 2 of this Article, and each director elected shall hold
office until his successor is elected and qualified or until his or her earlier
resignation or removal. Directors need not be stockholders.
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3.2 Vacancies. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, or until
his or her earlier resignation or removal. If there are no directors in office,
then an election of directors may be held in the manner provided by statute,
subject to the provisions of the Certificate of Incorporation. If, at the time
of filling any vacancy or any newly created directorship by the directors then
in office, such that the directors then in office shall constitute less than a
majority of the whole board (as constituted immediately prior to any such
vacancy or increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent of the total number of
the shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in office.
3.3 Management of Corporation. The business of the corporation shall be
managed by or under the direction of its 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 Certificate of Incorporation or by these by-laws
directed or required to be exercised or done by the stockholders.
ARTICLE IV - MEETINGS OF THE BOARD OF DIRECTORS
4.1 Meetings. The Board of Directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
4.2 First Meeting. The first meeting of each newly elected Board of
Directors shall be held at such time and place as shall be fixed by the vote of
the stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
Board of Directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors, or as shall be specified in a
written waiver signed by all of the directors.
4.3 Regular Meetings. Regular meetings of the Board of Directors may be
held without notice at such time and at such place as shall from time to time be
determined by the board.
4.4 Special Meetings. Special meetings of the board may be called by the
Chief Executive Officer or President on twenty-four hours' notice to each
director, either personally or by mail or by facsimile communication; special
meetings shall be called by the Chief Executive Officer, President or Secretary
in like manner and on like notice on the written request of one director unless
the board consists of only one director; in which case special meetings shall be
called by the Chief Executive Officer, President or Secretary in like manner and
on like notice on the written request of the sole director.
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4.5 Quorum. At all meetings of the board, a majority of directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. 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.
4.6 Informal Action. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing or by electronic transmission, and the writing(s) or
paper forms of any electronic transmission(s) are filed with the minutes of
proceedings of the board or committee.
4.7 Participation in Meetings. Unless otherwise restricted by the
certificate of incorporation or these by-laws, members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee, by any
means permitted under the General Corporation Law of Delaware (including
participation in a meeting of the Board of Directors, or committee, by means of
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other), and any such
participation in a meeting shall constitute presence in person at the meeting.
4.8 Presiding Over Meetings. The Chairman of the Board of Directors shall
preside at all meetings of the directors. In the absence or inability to act of
the Chairman, the Vice Chairman, the Chief Executive Officer, the President or a
Vice President (in that order) shall preside, and in their absence or inability
to act, another person designated by one of them shall preside. The Secretary of
the corporation shall act as Secretary of each meeting of the directors. In the
event of his or her absence or inability to act, the Chairman of the meeting
shall appoint a person who need not be a stockholder to act as Secretary of the
meeting.
4.9 Conducting Meetings. Meetings of the directors be conducted in a fair
manner but need not be governed by any prescribed rules of order. The presiding
officer of the meeting shall establish an agenda for the meeting. The presiding
officer's rulings on procedural matters shall be final. The presiding officer is
authorized to impose reasonable time limits on the remarks of individual board
member and may take such steps as such officer may deem necessary or appropriate
to assure that the business of the meeting is conducted in a fair and orderly
manner.
4.10 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 conclusively presumed to have assented to the action taken unless
his or her dissent shall be entered in the minutes of the meeting or unless he
or she shall file his or her 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 mail to the Secretary of the corporation
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immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a director who voted in favor of such action.
4.11 Committees.
(a) The Board of Directors may designate one or more committees, each
committee to consist of one or more of the directors of the corporation.
The board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting
of the committee. Any member of any committee appointed by the Board of
Directors, or the entire membership of such committee, may be removed, with
or without cause, by the vote of a majority of the Board of Directors.
(b) In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in
the place of any such absent or disqualified member.
(c) Any such committee, to the extent provided in the resolution of
the Board of Directors, shall have and may exercise all the powers and
authority 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; but no such committee
shall have the power or authority in reference to the following matters:
(i) approving or adopting, or recommending to the stockholders, any action
or matter expressly required by the General Corporation Law of Delaware to
be submitted to stockholders for approval or (ii) adopting, amending or
repealing any by-law of the corporation. Such committee or committees shall
have such name or names as may be determined from time to time by
resolution adopted by the Board of Directors.
(d) Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
4.12 Compensation of Directors. Unless otherwise restricted by the
certificate of incorporation or these by-laws, the Board of Directors shall have
the authority to fix the compensation of directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the Board of Directors
and may be paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings.
4.13 Removal and Resignation of Directors. Unless otherwise restricted by
the certificate of incorporation or by law, any director or the entire Board of
Directors may be removed, with or without cause, by the holders of a majority of
shares entitled to vote in the election of directors. Any director of the
corporation may resign at any time by giving notice in writing or electronic
transmission to the Board of Directors, the Chairman, the Chief Executive
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Officer or the President. Such resignation shall take effect at the time
specified therein and, unless tendered to take effect upon acceptance thereof,
the acceptance of such resignation shall not be necessary to make it effective.
ARTICLE V - NOTICES
5.1 Notice. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in any manner as prescribed by the General
Corporation Law of Delaware.
5.2 Wavier of Notice. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, or a waiver by electronic transmission by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE VI - OFFICERS
6.1 Officers. The officers of the corporation shall be chosen by the Board
of Directors and shall include a President, a Vice-President, a Secretary and a
Treasurer. The Board of Directors may also appoint a Chairman of the board,
Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, Chief
Technology Officer, Vice President of Development Services, one or more Senior
Vice-Presidents, additional Vice-Presidents, and one or more assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these by-laws otherwise
provide.
6.2 Election of Officers. The Board of Directors at its first meeting after
each annual meeting of stockholders shall choose a Chief Executive Officer,
President, one or more Vice-Presidents, a Secretary and a Treasurer. Any number
of offices may be held by the same person, unless the certificate of
incorporation or these by-laws otherwise provide. The Board of Directors may
appoint such other officers and agents as it shall deem necessary who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the board.
6.3 Compensation of Officers. The salaries and other compensation of all
officers and agents of the corporation shall be fixed by the Board of Directors.
6.4 Term of Officers. The officers of the corporation shall hold office
until their successors are chosen and qualify. Any officer elected or appointed
by the Board of Directors may be removed at any time by the affirmative vote of
a majority of the Board of Directors. Any vacancy occurring in any office of the
corporation shall be filled by the Board of Directors.
6.5 Chairman of the Board. The Chairman of the Board shall preside at all
meetings of the Board of Directors and shall see that orders and resolutions of
the Board of Directors are carried into effect. The Chairman of the Board shall
perform such other duties as the Board of Directors may from time to time
prescribe.
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6.6 Chief Executive Officer. The Board of Directors may select a Chief
Executive Officer of the corporation who, if appointed, shall be subject to the
control of the Board of Directors and have general supervision, direction and
control of the business and the officers of the corporation. The Chief Executive
Officer shall preside at all meetings of the stockholders and, in the absence or
nonexistence of a Chairman of the board, at all meetings of the Board of
Directors. The Chief Executive Officer shall see that the resolutions and
directions of the Board of Directors are carried into effect except in those
instances in which that responsibility is specifically assigned to some other
person by the Board of Directors, and, in connection therewith, shall be
authorized to delegate to the President and the other executive officers such of
his powers and duties as Chairman of the board at such times and in such manner
as he may deem to be advisable. In general, he shall discharge all duties
incident to such office and such other duties as may be prescribed by the Board
of Directors from time to time. Except where by law or by order of the Board of
Directors the signature of the President is required, the Chief Executive
Officer shall have the same power as the President to execute instruments on
behalf of the corporation.
6.7 President. The President shall act at the direction of the Chief
Executive Officer and the Board of Directors and shall be the executive officer
next in authority to the Chief Executive Officer. If there shall be no Chief
Executive Officer, or in his or her absence or inability or refusal to act, then
the President shall perform the duties prescribed for such office, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the Chief Executive Officer. The President shall assist the Chief Executive
Officer in the management of the business of the corporation, and shall have
such other powers and duties as the Board of Directors may from time to time
prescribe.
6.8 Senior Vice-President(s). In the absence of the President or in the
event of his inability or refusal to act, the Senior Vice-President (or in the
event there be more than one Senior Vice-President, the Senior Vice-Presidents
in the order designated by the directors, or in the absence of any designation,
then in the order of their election) shall perform the duties of the President,
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President. The Senior Vice-Presidents shall perform such
other duties and have such other powers as the Board of Directors may from time
to time prescribe.
6.9 Vice-President(s). In the absence of the Senior Vice-President or in
the event of their 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 directors, or in the absence of any designation, then in the
order of their election) shall perform the duties of the Senior
Vice-President(s), and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Senior Vice-President(s). The
Vice-Presidents shall perform such other duties and have such other powers as
the Board of Directors may from time to time prescribe.
6.10 Chief Financial Officer. The Board of Directors may select a Chief
Financial Officer who, if appointed, shall be subject to the control of the
Board of Directors, the Chief Executive Officer and the President, and shall be
the principal financial and accounting officer of the corporation. The Chief
Financial Officer shall: (a) have charge of and be responsible for the
maintenance of adequate books of account for the corporation; (b) have charge
and custody of all funds and securities of the corporation, and be responsible
therefor and for the receipt and disbursement thereof; and (c) perform all the
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duties incident to the office of the Chief Financial Officer and such other
duties as the Chief Executive Officer, the President or the Board of Directors
may from time to time prescribe. The duties and role of Treasurer, as set forth
herein shall be subsumed by the Chief Financial Officer if one is appointed
where no separate Treasurer is appointed. If there shall also be a separate
Treasurer, the Treasurer shall perform his duties at the direction of the Chief
Financial Officer, the President and the Board of Directors. If required by the
Board of Directors, the Chief Financial Officer shall give a bond for the
faithful discharge of his duties as Chief Financial Officer in such sum and with
such surety or sureties as the Board of Directors may determine.
6.11 Chief Operating Officer. The Chief Operating Officer shall be the
chief operating officer of the Company, and as such shall direct the operations
of the Company within the limits prescribed by the Chief Executive Officer, the
President and the Board of Directors. He shall have such other powers and duties
as the Chief Executive Officer, the President or the Board of Directors may
assign to him from time to time. He may (i) sign, alone or with the Secretary or
any other proper officer of the Company thereunto authorized by the Board of
Directors, any policies, deeds, mortgages, bonds, contracts or other instruments
which the Board of Directors has authorized to be executed except in cases where
the signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the corporation, or shall be
required by law to be otherwise signed or executed, (ii) notwithstanding the
foregoing, sign, alone or with the Secretary or any other proper officer of the
corporation, contracts, documents or other instruments in the ordinary course of
business consistent with past practice, and (iii) appoint and discharge agents
and employees of the corporation except those that are appointed by the Chief
Executive Officer, the President or the Board of Directors. He shall, in
general, perform all duties incident to the office of Chief Operating Officer.
6.12 Chief Technology Officer. The Chief Technology Officer shall advise
the Board and the Chief Executive Officer on software and hardware technology,
software architecture development, information technology and other technical
issues related to the matters which they consider and shall oversee the
technology functions of the corporation. The Chief Technology Officer shall
identify and evaluate trends in technologies and economic and regulatory issues,
assist the Chief Executive Officer in developing strategic goals and objectives
for the Corporation, and perform all other duties as may be incident thereto or
as otherwise assigned by the Board of Directors or the Chief Executive Officer.
6.13 Vice President of Development Services. The Vice President of
Development Services shall advise the Board, the Chief Executive Officer and
Chief Technology Officer on product development, product positioning, product
performance, developing product road maps and other issues related to the
matters which they consider and shall generally oversee the product development
of the corporation. The Vice President of Development Services shall be
responsible for identifying and evaluating trends in product development,
competitive offerings and positioning and market requirements, and shall work
with all operational areas of the corporation in connection with the foregoing.
The Vice President of Development Services shall assist the Chief Executive
Officer and Chief Technology Officer in developing strategic goals and
objectives for the Corporation, including, without limitation, defining and
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executing global product strategy and development, and shall perform all other
duties as may be incident thereto or as otherwise assigned by the Board of
Directors or the Chief Executive Officer.
6.14 Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the Board of Directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors or
President, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an Assistant Secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such Assistant
Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
6.15 Assistant Secretary. The Assistant Secretary, or if there be more than
one, the Assistant Secretaries in the order determined by the Board of Directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the Secretary or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the Secretary and
shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
6.16 Treasurer and Assistant Treasurers.
(a) The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all
moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the Board of
Directors.
(b) He shall disburse the funds of the corporation as may be ordered
by the Board of Directors, taking proper vouchers for such disbursements,
and shall render to the President and the Board of Directors, at its
regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
corporation.
(c) If required by the Board of Directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and
with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for
the restoration to the corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money
and other property of whatever kind in his possession or under his control
belonging to the corporation.
(d) He shall perform all duties incident to the office of Treasurer
and all other duties as from time to time may be assigned to him by the
Board of Directors and the President; provided, that if there shall also be
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appointed a Chief Financial Officer, the Treasurer shall perform his duties
at the direction of the Chief Financial Officer, President and Board of
Directors.
(e) The Assistant Treasurer, or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of Directors (or
if there be no such determination, then in the order of their election)
shall, in the absence of the Treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the Treasurer
and shall perform such other duties and have such other powers as the Board
of Directors may from time to time prescribe.
ARTICLE VII - CERTIFICATES FOR SHARES
7.1 Certificates. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the Chairman or Vice-Chairman of the Board of
Directors, or the President or a Vice-President, and by the Treasurer- or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
corporation.
7.2 Classes of Stock. If the corporation shall be authorized to issue more
than one class of stock or more than one series of any class, the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights shall be set forth
in full or summarized on the face or back of the certificate which the
corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided in section 202 of the General Corporation Law
of Delaware, in lieu of the foregoing requirements, there may be set forth on
the face or back of the certificate which the corporation shall issue to
represent such class or series of stock, a statement that the corporation will
furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
7.3 Uncertificated Shares. Within a reasonable time after the issuance or
transfer of uncertificated stock, the corporation shall send to the registered
owner thereof a written notice containing the information required to be set
forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a)
of the General Corporation Law of Delaware or a statement that the corporation
will furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
7.4 Signatures on Certificates. Any of or all the signatures on a
certificate may be 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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7.5 Lost Certificates. The Board of Directors may direct a new certificate
or certificates or uncertificated shares to 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 that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates or
uncertificated shares, the Board of Directors may, in 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/or 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 alleged
to have been lost, stolen or destroyed.
7.6 Transfer of Stock. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books. Upon receipt of proper transfer instructions from
the registered owner of uncertificated shares such uncertificated shares shall
be cancelled and issuance of new equivalent uncertificated shares or
certificated shares shall be made to the person entitled thereto and the
transaction shall be recorded upon the books of the corporation.
7.7 Fixing of Record Date. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or 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 sixty nor less than ten days before the date of
such meeting, nor more than sixty 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.
7.8 Registered Stockholders. 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 provided by the laws
of Delaware.
ARTICLE VII - CONFLICT OF INTERESTS
8.1 Contract or Relationship Not Void. 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
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reason, or solely because such director or officer is present at, or
participates in, the meeting of the Board of Directors or committee thereof
which authorizes the contract or transaction, or solely because such director's
or officer's vote is counted for such purpose, if:
(a) the material facts as to such director's or officer's 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 or
committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or
(b) the material facts as to such director's or officer's 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
(c) 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.
8.2 Quorum. 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.
ARTICLE IX - GENERAL PROVISIONS
9.1 Dividends. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
9.2 Reserves. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
9.3 Annual Statement. The Board of Directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
9.4 Checks. 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.
9.5 Fiscal Year. The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.
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9.6 Seal. The corporation may have, but shall not be required to have, a
corporate seal. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
9.7 Indemnification. The corporation shall indemnify its officers,
directors, employees and agents to the extent permitted by the General
Corporation Law of Delaware and as may be set forth in the corporation's
Certificate of Incorporation.
9.8 Stock in Other Corporations. Shares of any other corporation which may
from time to time be held by this corporation may be represented and voted at
any meeting of stockholders of such corporation by the Chairman, the Chief
Executive Officer, the President, the Chief Financial Officer or a Vice
President of the corporation, or by any proxy appointed in writing by the
Chairman, the Chief Executive Officer, the President, the Chief Financial
Officer or a Vice President of the corporation, or by any other person or
persons thereunto authorized by the Board of Directors. Shares represented by
certificates standing in the name of the corporation may be endorsed for sale or
transfer in the name of the corporation by the Chairman, the Chief Executive
Officer, the President, the Chief Financial Officer or any Vice President of the
corporation or by any other officer or officers thereunto authorized by the
Board of Directors. Shares belonging to the corporation need not stand in the
name of the corporation, but may be held for the benefit of the corporation in
the individual name of the Chief Financial Officer or of any other nominee
designated for the purpose of the Board of Directors.
ARTICLE X - AMENDMENTS
These by-laws may be altered, amended or repealed or new by-laws may be
adopted by the stockholders or by the Board of Directors, when such power is
conferred upon the Board of Directors by the certificate of incorporation, at
any regular meeting of the stockholders or of the Board of Directors or at any
special meeting of the stockholders or of the Board of Directors if notice of
such alteration, amendment, repeal or adoption of new by-laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
by-laws is conferred upon the Board of Directors by the certificate of
incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws. Notwithstanding the foregoing, the provisions of
Sections 2.2, 2.6, 2.11, 3.1, 4.4 and Article X, shall not be altered, amended
or repealed without the approval of a majority of stockholders entitled to vote
or consent on the matter.
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