Attached files
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EX-21 - EXHIBIT 21 - Helios & Matheson Analytics Inc. | c98484exv21.htm |
EX-4.1 - EXHIBIT 4.1 - Helios & Matheson Analytics Inc. | c98484exv4w1.htm |
EX-3.1 - EXHIBIT 3.1 - Helios & Matheson Analytics Inc. | c98484exv3w1.htm |
EX-10.2 - EXHIBIT 10.2 - Helios & Matheson Analytics Inc. | c98484exv10w2.htm |
EX-31.1 - EXHIBIT 31.1 - Helios & Matheson Analytics Inc. | c98484exv31w1.htm |
EX-32.1 - EXHIBIT 32.1 - Helios & Matheson Analytics Inc. | c98484exv32w1.htm |
EX-10.1 - EXHIBIT 10.1 - Helios & Matheson Analytics Inc. | c98484exv10w1.htm |
EX-23.2 - EXHIBIT 23.2 - Helios & Matheson Analytics Inc. | c98484exv23w2.htm |
10-K - FORM 10-K - Helios & Matheson Analytics Inc. | c98484e10vk.htm |
EXHIBIT 3.2
BYLAWS
OF
HELIOS & MATHESON NORTH AMERICA INC.,
A Delaware corporation
OF
HELIOS & MATHESON NORTH AMERICA INC.,
A Delaware corporation
ARTICLE I OFFICES
1. REGISTERED OFFICE AND AGENT
The registered office and registered agent of Helios & Matheson North America Inc. (Corporation)
shall be as set forth in the Corporations Certificate of Incorporation. The registered office or
the registered agent may be changed by resolution of the Board of Directors, upon making the
appropriate filing with the Secretary of State.
2. PRINCIPAL OFFICE
The principal office of the Corporation may be located either within or without the State of
Delaware as the Board of Directors may designate or as the business of the Corporation may require
from time to time.
3. OTHER OFFICES
The Corporation may also have other offices at such places, within or without the State of
Delaware, as the Board of Directors may designate, or as the business of the Corporation may
require or as may be desirable.
ARTICLE II SHAREHOLDERS
1. ANNUAL MEETING
Annual meetings of shareholders shall be held to elect the Board of Directors and transact such
other business as may properly be brought before the meeting. The Chairman of the Board shall
preside at all annual shareholders meetings, provided that in the event the Chairman of the Board
is absent from an annual shareholders meeting the Board shall appoint another director to preside
at such meeting.
2. SPECIAL SHAREHOLDERS MEETINGS
Special meetings of the shareholders may be called by the Board of Directors or the Chairman of the
Board and shall be called by the Secretary at the request in writing of holders of record of a
majority of the outstanding capital stock of the Corporation entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting. The Chairman of the Board shall preside at
all special shareholders meetings, provided that in the event the Chairman of the Board is absent
from a special shareholders meeting the Board shall appoint another director to preside at
such meeting.
Helios & Matheson North America Inc. Bylaws | Page 1 of 22 |
3. TIME AND PLACE OF MEETING
All meetings of shareholders shall be held at such place, either within or without the State of
Delaware, on such date and at such time as may be determined from time to time by the Board of
Directors (or the Chairman in the absence of a designation by the Board of Directors). The Board
of Directors may, in its discretion, determine that the meeting may be held solely by means of
remote communication. If authorized by the Board of Directors, and subject to any guidelines and
procedures adopted by the Board of Directors, shareholders not physically present at a meeting of
shareholders, by means of remote communication may participate in a meeting of shareholders; and,
may be considered present in person and may vote at a meeting of shareholders held at a designated
place or held solely by means of remote communication, subject to the conditions imposed by Section
211(a)(2) of the Delaware General Corporation Law.
4. NOTICE OF SHAREHOLDERS MEETING
Written or printed notice stating the place, day, and hour of the meeting, the means of any remote
communications by which shareholders may be considered present and may vote at 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 (10) days nor more than sixty (60) days before the date of the meeting,
personally, by electronic transmission, or by mail, by or at the direction of the President, the
Chief Executive Officer, the Secretary, or the officer or person calling the meeting, to each
shareholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail addressed to the shareholder at the
shareholders address as it appears on the share transfer records of the Corporation, with postage
thereon prepaid.
The Corporation shall notify each shareholder, whether or not entitled to vote, of any meeting of
shareholders at which a plan of merger or exchange is to be submitted for approval in accordance
with Section 251 of the Delaware General Corporation Law. The notice shall be given at least 20
days before the meeting and shall state that the purpose, or one of the purposes, of the meeting is
to consider the plan of merger or exchange and shall contain or be accompanied by a copy or summary
of the plan.
Written or printed notice setting forth any proposed amendment to the Certificate of Incorporation
or a summary of the changes to be effected thereby shall be given to each shareholder of record
entitled to vote thereon within the time and in the manner provided in the Delaware General
Corporation Law for the giving of notice of meetings of shareholders. If the meeting be an annual
meeting, the proposed amendment or such summary may be included in the notice of such annual
meeting.
Helios & Matheson North America Inc. Bylaws | Page 2 of 22 |
Any notice required to be given to any shareholder, under any provision of the Delaware General
Corporation Law or the Certificate of Incorporation or these Bylaws, need not be given to the
shareholder if (1) notice of two consecutive annual meetings and all notices of meetings held
during
the period between those annual meetings, if any, or (2) all (but in no event less than two)
payments (if sent by first class mail) of distributions or interest on securities during a 12 month
period have been mailed to that person, addressed at the shareholders address as shown on the
share transfer records of the Corporation, and have been returned undeliverable. Any action or
meeting taken or held without notice to such a person shall have the same force and effect as if
the notice had been duly given. If such a person delivers to the Corporation a written notice
setting forth the shareholders then current address, the requirement that notice be given to that
person shall be reinstated.
Notice by Electronic Transmission: On consent of a shareholder, notice from the Corporation under
any provision of the Delaware General Corporation Law, the Certificate of Incorporation, or these
Bylaws may be given to the shareholder by electronic transmission. The shareholder may specify the
form of electronic transmission to be used to communicate notice. The shareholder may revoke this
consent by written notice to the Corporation. The shareholders consent is deemed to be revoked if
the Corporation is unable to deliver by electronic transmission two consecutive notices, and the
secretary, assistant secretary, or transfer agent of the Corporation, or another person responsible
for delivering notice on behalf of the Corporation knows that delivery of these two electronic
transmissions was unsuccessful. The inadvertent failure to treat the unsuccessful transmissions as
a revocation of shareholder consent does not invalidate a meeting or other action.
Notice by electronic transmission is deemed given when the notice is: (1) transmitted to a
facsimile number provided by the shareholder for the purpose of receiving notice; (2) transmitted
to an electronic mail address provided by the shareholder for the purpose of receiving notice; (3)
posted on an electronic network and a message is sent to the shareholder at the address provided by
the shareholder for the purpose of alerting the shareholder of a posting; or (4) communicated to
the shareholder by any other form of electronic transmission consented to by the shareholder.
An affidavit of the Secretary, Assistant Secretary, transfer agent, or other agent of the
Corporation that notice has been given by electronic transmission is, in the absence of fraud,
prima facie evidence that the notice was given.
5. FIXING RECORD DATES FOR MATTERS OTHER THAN CONSENTS TO ACTION
For the purpose of determining shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or entitled to receive a distribution by the Corporation
(other than a distribution involving a purchase or redemption by the Corporation of any of its own
shares) or a share dividend, or in order to make a determination of shareholders for any other
proper purpose (other than determining shareholders entitled to consent to action by shareholders
proposed to be taken without a meeting of shareholders), the Board of Directors of the Corporation
may provide that the share transfer records shall be closed for a stated period but not to exceed,
in any case, sixty (60) days. If the share transfer records shall be closed for the purpose of
determining shareholders entitled to notice of or to vote at a meeting of shareholders, such
records shall be closed for at least ten (10) days immediately preceding such meeting.
Helios & Matheson North America Inc. Bylaws | Page 3 of 22 |
In lieu of closing the share transfer records, the Bylaws, or in the absence of an applicable bylaw
the Board of Directors, may fix in advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than sixty (60) days and, in the case of a
meeting of shareholders, not less than ten (10) days, prior to the date on which the particular
action requiring such determination of shareholders is to be taken. If the share transfer records
are not closed and no record date is fixed for the determination of shareholders entitled to notice
of or to vote at a meeting of shareholders, or shareholders entitled to receive a distribution
(other than a distribution involving a purchase or redemption by the Corporation of any of its own
shares) or a share dividend, the date on which notice of the meeting is mailed or the date on which
the resolution of the Board of Directors declaring such distribution or share dividend is adopted,
as the case may be, shall be the record date for such determination of shareholders. When a
determination of shareholders entitled to vote at any meeting of shareholders has been made as
provided in this section, such determination shall apply to any adjournment thereof except where
the determination has been made through the closing of the share transfer records and the stated
period of closing has expired.
6. FIXING RECORD DATES CONSENTS TO ACTION
Unless a record date shall have previously been fixed or determined pursuant to this section,
whenever action by shareholders is proposed to be taken by consent in writing without a meeting of
shareholders, the Board of Directors may fix a record date for the purpose of determining
shareholders entitled to consent to that action, which record date shall not precede, and shall not
be more than ten (10) days after, the date upon which the resolution fixing the record date is
adopted by the Board of Directors. If no record date has been fixed by the Board of Directors and
the prior action of the Board of Directors is not required by the Delaware General Corporation Law,
the record date for determining shareholders entitled to consent to action in writing without a
meeting shall be the first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation. Delivery shall be by hand or by certified or
registered mail, return receipt requested. Delivery to the Corporations principal place of
business shall be addressed to the President or the principal executive officer of the Corporation.
If no record date shall have been fixed by the Board of Directors and prior action of the Board of
Directors is required by the Delaware General Corporation Law, the record date for determining
shareholders entitled to consent to action in writing without a meeting shall be at the close of
business on the date on which the Board of Directors adopts a resolution taking such prior action.
7. VOTING LISTS
The officer or agent having charge of the share transfer records for shares of the Corporation
shall make, at least ten (10) days before each meeting of shareholders, a complete list 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 list, for a period of ten
(10) days prior to such meeting, shall be kept on file at the registered office or principal place
of business of the Corporation and shall be subject to inspection by any shareholder at any time
during usual business hours. Alternatively, the list of the shareholders may be kept on a
reasonably accessible electronic
network, if the information required to gain access to the list is provided with the notice of the
meeting.
Helios & Matheson North America Inc. Bylaws | Page 4 of 22 |
This does not require the Corporation to include any electronic contact information of
any shareholder on the list. If the Corporation elects to make the list available on an electronic
network, the Corporation shall take reasonable steps to ensure that the information is available
only to shareholders of the Corporation. Such list shall also be produced and kept open at the
time and place of the meeting and shall be subject to the inspection of any shareholder during the
whole time of the meeting. If the meeting is held by means of remote communication, the list must
be open to the examination of any shareholder for the duration of the meeting on a reasonably
accessible electronic network, and the information required to access the list must be provided to
shareholders with the notice of the meeting. The original share transfer records shall be
prima-facie evidence as to who are the shareholders entitled to examine such list or transfer
records or to vote at any meeting of shareholders. However failure to prepare and make the list
available in the manner provided above shall not affect the validity of any action taken at the
meeting.
8. VOTING OF SHARES AND PROXIES
Each outstanding share, regardless of class, shall be entitled to one vote on each matter submitted
to a vote at a meeting of shareholders, except: (a) to the extent that the Certificate of
Incorporation of the Corporation provides for more or less than one vote per share or (if and to
the extent permitted by the Delaware General Corporation Law) limit or deny voting rights to the
holders of the shares of any class or series, or (b) as otherwise provided by the Delaware General
Corporation Law.
Shares of its own stock owned by the Corporation or by another domestic or foreign corporation or
other entity, if a majority of the voting stock or voting interest of the other corporation or
other entity is owned or controlled by the Corporation, shall not be voted, directly or indirectly,
at any meeting, and shall not be counted in determining the total number of outstanding shares at
any given time. Nothing in this section shall be construed as limiting the right of the
Corporation or any domestic or foreign corporation or other entity to vote stock, held or
controlled by it in a fiduciary capacity, or with respect to which it otherwise exercises voting
power in a fiduciary capacity.
Any shareholder may vote either in person or by proxy executed in writing by the shareholder. An
electronic transmission by the shareholder, or a photographic, photostatic, facsimile, or similar
reproduction of a writing executed by the shareholder, shall be treated as an execution in writing
for purposes of this section. Any electronic transmission must contain or be accompanied by
information from which it can be determined that the transmission was authorized by the
shareholder. No proxy shall be valid after three (3) years from the date of its execution unless
otherwise provided in the proxy. A proxy shall be revocable unless the proxy form conspicuously
states that the proxy is irrevocable and the proxy is coupled with an interest. Proxies coupled
with an interest include the appointment as proxy of: (1) a pledgee; (2) a person who purchased or
agreed to purchase, or owns or holds an option to purchase, the shares; (3) a creditor of the
Corporation who extended it credit under terms requiring the appointment; (4) an employee of the
Corporation whose employment contract requires the appointment; or (5) a party to a voting
agreement or voting trust created under Section 218 of the Delaware General Corporation Law.
Helios & Matheson North America Inc. Bylaws | Page 5 of 22 |
An irrevocable proxy, if noted conspicuously on the certificate representing the shares that are
subject to the irrevocable proxy or, in the case of uncertificated shares, if notation of the
irrevocable proxy is contained in the notice sent pursuant to Section 222 of the Delaware General
Corporation Law with respect to the shares that are subject to the irrevocable proxy, shall be
specifically enforceable against the holder of those shares or any successor or transferee of the
holder. Unless noted conspicuously on the certificate representing the shares that are subject to
the irrevocable proxy or, in the case of uncertificated shares, unless notation of the irrevocable
proxy is contained in the notice sent pursuant to Section 222 of the Delaware General Corporation
Law with respect to the shares that are subject to the irrevocable proxy, an irrevocable proxy,
even though otherwise enforceable, is ineffective against a transferee for value without actual
knowledge of the existence of the irrevocable proxy at the time of the transfer or against any
subsequent transferee (whether or not for value), but such an irrevocable proxy shall be
specifically enforceable against any other person who is not a transferee for value from and after
the time that the person acquires actual knowledge of the existence of the irrevocable proxy.
At each election for directors every shareholder entitled to vote at such election shall have the
right to vote the number of shares owned by such shareholder for as many persons as there are
directors to be elected and for whose election the shareholder has a right to vote. Shareholders
are prohibited from cumulating their votes in any election of directors of the Corporation.
Shares standing in the name of another corporation, domestic or foreign, may be voted by such
officer, agent, or proxy as the Bylaws of such corporation may authorize or, in the absence of such
authorization, as the Board of Directors of such corporation may determine; provided, however, that
when any foreign corporation without a permit to do business in this State lawfully owns or may
lawfully own or acquire stock in a Delaware corporation, it shall not be unlawful for such foreign
corporation to vote said stock and participate in the management and control of the business and
affairs of the Corporation, as other stockholders, subject to all laws, rules, and regulations
governing Delaware corporations and especially subject to the provisions of the Anti-Trust laws of
the State of Delaware.
Shares held by an administrator, executor, guardian, or conservator may be voted by him or her so
long as such shares forming a part of an estate are in the possession and forming a part of the
estate being served by him or her, either in person or by proxy, without a transfer of such shares
into his or her name.
Shares standing in the name of a trustee may be voted by him or her, either in person or by proxy,
but no trustee shall be entitled to vote shares held by him or her without a transfer of such
shares into his or her name as trustee.
Shares standing in the name of a receiver may be voted by such a receiver, and shares held by or
under the control of a receiver may be voted by such receiver without the transfer thereof into his
or her name if authority so to do be contained in an appropriate order of the court by which such
receiver was appointed.
Helios & Matheson North America Inc. Bylaws | Page 6 of 22 |
A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have
been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote
the shares so transferred, subject to any agreements containing restrictions on the hypothecation,
assignment, pledge, or voluntary or involuntary transfer of shares.
With respect to any matter, other than the election of directors or a matter for which the
affirmative vote of the holders of a specified portion of the shares entitled to vote is required
by the Delaware General Corporation Law, the affirmative vote of the holders of a majority of the
shares entitled to vote on, and that voted for or against or expressly abstained with respect to,
that matter at a meeting of shareholders at which a quorum is present shall be the act of the
shareholders, unless otherwise provided in the Certificate of Incorporation or these Bylaws.
Unless otherwise provided in the Certificate of Incorporation or these Bylaws, directors shall be
elected by a plurality of the votes cast by the holders of shares entitled to vote in the election
of directors at a meeting of shareholders at which a quorum is present.
Any vote may be taken by voice or show of hands unless a shareholder entitled to vote, either in
person or by proxy objects, in which case written ballots shall be used.
9. QUORUM OF SHAREHOLDERS
Unless otherwise provided under the Certificate of Incorporation or these Bylaws and subject to
Delaware law, the presence, in person or by proxy, of the holders of a majority of the outstanding
shares of the class or classes of capital stock of the Corporation entitled to vote at a meeting of
shareholders shall constitute a quorum for the transaction of business, except that as to any
action required to be taken by shareholders voting separately as a class or classes a majority of
the shares entitled to vote separately as one class shall constitute a quorum of that class and may
act separately whether or not a quorum of another class or classes be present.
After a quorum has been established at a shareholders meeting, the subsequent withdrawal of
shareholders, so as to reduce the number of shares entitled to vote at the meeting below the number
required for a quorum, shall not affect the validity of any action taken at the meeting or any
adjournment thereof.
Unless otherwise provided in the Certificate of Incorporation or these Bylaws, once a quorum is
present at a meeting of shareholders, the shareholders represented in person or by proxy at the
meeting may conduct such business as may be properly brought before the meeting until it is
adjourned, and the subsequent withdrawal from the meeting of any shareholder or the refusal of any
shareholder represented in person or by proxy to vote shall not affect the presence of a quorum at
the meeting. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, the
shareholders represented in person or by proxy at a meeting of shareholders at which a quorum is
not present may adjourn the meeting until such time and to such place as may be determined by a
vote of the holders of a majority of the shares represented in person or by proxy at that meeting.
Helios & Matheson North America Inc. Bylaws | Page 7 of 22 |
When a meeting is adjourned, it shall not be necessary to give any notice of the adjourned meeting
if the time, date, and place of the reconvened meeting are announced at the meeting at which the
adjournment is taken, and any business may be transacted at the reconvened meeting that might have
been transacted at the original meeting. If, however, following the adjournment, the Board fixes a
new record date for the reconvened meeting, a notice of the reconvened meeting shall be given as
stated in Article II, Section 4 of these Bylaws above to each shareholder of record on the new
record date entitled to vote at such meeting.
10. ACTION BY SHAREHOLDERS WITHOUT MEETING
Unless otherwise provided in the Corporations Certificate of Incorporation, any action required by
the Delaware General Corporation Law to be taken at any annual or special meeting of shareholders,
or any action which may be taken at any annual or special meeting of shareholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holder or holders of shares having not
less than the minimum number of votes that would be necessary to take such action at a meeting at
which holders of all shares entitled to vote on the action were present and voted.
Every written consent shall bear the date of signature of each shareholder who signs the consent.
No written consent shall be effective to take the action that is the subject of the consent unless,
within 60 days after the date of the earliest dated consent delivered to the Corporation in a
manner required by these Bylaws, a consent or consents signed by the holder or holders of shares
having not less than the minimum number of votes that would be necessary to take the action that is
the subject of the consent are delivered to the Corporation by delivery to its registered office,
registered agent, principal place of business, transfer agent, registrar, exchange agent, or an
officer or agent of the Corporation having custody of the books in which proceedings of meetings of
shareholders are recorded. Delivery shall be by hand or certified or registered mail, return
receipt requested. Delivery to the Corporations principal place of business shall be addressed to
the President or principal executive officer of the Corporation.
An electronic transmission by a shareholder consenting to an action to be taken is considered to be
written, signed, and dated for the purposes of this section if the transmission sets forth or is
delivered with information from which the Corporation can determine that the transmission was
transmitted by the shareholder and the date on which the shareholder transmitted the transmission.
The date of transmission is the date on which the consent was signed. Consent given by electronic
transmission may not be considered delivered until the consent is reproduced in paper form and the
paper form is delivered to the Corporation at its registered office in this state or its principal
place of business, or to an officer or agent of the Corporation having custody of the book in which
proceedings of shareholder meetings are recorded. Notwithstanding the preceding paragraph of this
section, consent given by electronic transmission may be 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 shareholder meetings are recorded to the extent and in the manner provided
by resolution of the Board of Directors of the Corporation.
Helios & Matheson North America Inc. Bylaws | Page 8 of 22 |
Any photographic, photostatic, facsimile, or similarly reliable reproduction of a consent in
writing signed by a shareholder may be substituted or used instead of the original writing for any
purpose for which the original writing could be used, if the reproduction is a complete
reproduction of the entire original writing.
Prompt notice of the taking of any action by shareholders without a meeting by less than unanimous
written consent shall be given to those shareholders who did not consent in writing to the action.
11. REDEMPTION OF SHARES
The Corporation shall have the power to redeem the shares of any shareholder, or the shares of a
deceased shareholder, upon such terms as may be agreed upon by the Board of Directors and such
shareholder or the shareholders personal representative, or at such price and upon such terms as
may be provided in the Certificate of Incorporation, these Bylaws, or any applicable stock purchase
or redemption agreement.
ARTICLE III DIRECTORS
1. BOARD OF DIRECTORS
To the extent not limited or prohibited by law, the Certificate of Incorporation, or these Bylaws,
the powers of the Corporation shall be exercised by or under the authority of, and the business and
affairs of the Corporation shall be managed under the direction of the Board of Directors of the
Corporation. Directors need not be residents of the State of Delaware or shareholders of the
Corporation unless the Certificate of Incorporation or these Bylaws so require.
In the discharge of any duty imposed or power conferred upon a director, including as a member of a
committee, a director, may in good faith and with ordinary care, rely on information, opinions,
reports, or statements, including financial statements and other financial data, concerning the
Corporation or another person, that were prepared or presented by: (1) one or more officers or
employees of the Corporation; (2) legal counsel, public accountants, investment bankers, or other
persons as to matters the director reasonably believes are within the persons professional or
expert competence; or (3) a committee of the Board of Directors of which the director is not a
member.
A director is not relying in good faith within the meaning of this section if the director has
knowledge concerning the matter in question that makes reliance otherwise permitted by this section
unwarranted.
2. NUMBER AND ELECTION OF DIRECTORS
The number of directors shall be not less than three (3) or more than nine (9) provided that the
number may be increased or decreased from time to time by an amendment to these Bylaws or
resolution adopted by the Board of Directors or by the shareholders. No decrease in the number of
Directors shall have the effect of shortening the term of any incumbent director.
Helios & Matheson North America Inc. Bylaws | Page 9 of 22 |
At the first annual meeting of shareholders and at each annual meeting thereafter, the holders of
shares entitled to vote in the election of directors shall elect directors to hold office until the
next succeeding annual meeting.
3. REMOVAL
Except as otherwise provided by the Delaware General Corporation Law, these Bylaws, or the
Certificate of Incorporation, at any meeting of shareholders called expressly for that purpose any
director or the entire Board of Directors may be removed, with or without cause, by a vote of the
holders of a majority of the shares then entitled to vote at an election of directors, subject to
any further restrictions on removal that may be contained in the Bylaws. Whenever the holders of
any class or series of shares or any such group are entitled to elect one or more directors by the
provisions of the Certificate of Incorporation, only the holders of shares of that class or series
or group shall be entitled to vote for or against the removal of any director elected by the
holders of shares of that class or series or group.
4. RESIGNATION
A director may resign by providing notice in writing or by electronic transmission of such
resignation to the Corporation. The resignation shall be effective upon the date of receipt of the
notice of resignation or the date specified in such notice. Acceptance of the resignation shall not
be required to make the resignation effective.
5. VACANCIES AND INCREASE IN NUMBER OF DIRECTORS
Any vacancy occurring in the Board of Directors may be filled by election at an annual or special
meeting of shareholders called for that purpose or may be filled by the affirmative vote of a
majority of the remaining directors though less than a quorum of the Board of Directors. A
director elected to fill a vacancy shall be elected for the unexpired term of his or her
predecessor in office.
A directorship to be filled by reason of an increase in the number of directors may be filled by
election at an annual or special meeting of shareholders called for that purpose or may be filled
by the Board of Directors for a term of office continuing only until the next election of one or
more directors by the shareholders.
Notwithstanding the above, whenever the holders of any class or series of shares or group of
classes or series of shares are entitled to elect one or more directors by the provisions of the
Certificate of Incorporation, any vacancies in such directorships and any newly created
directorships of such class or series to be filled by reason of an increase in the number of such
directors may be filled by the affirmative vote of a majority of the directors elected by such
class or series, or by such group, then in office, or by a sole remaining director so elected, or
by the vote of the holders of the outstanding shares of such class or series or of such group, and
such directorships shall not in any case be filled
by the vote of the remaining directors or the holders of the outstanding shares as a whole unless
otherwise provided in the Certificate of Incorporation.
Helios & Matheson North America Inc. Bylaws | Page 10 of 22 |
6. ANNUAL MEETING OF DIRECTORS
Immediately following each annual meeting of shareholders, the Board of Directors elected at such
meeting shall hold an annual meeting at which they shall elect officers and transact such other
business as shall come before the meeting. The time and place of the annual meeting of the Board of
Directors may be changed by resolution of the Board of Directors. The Chairman of the Board shall
preside at all annual directors meetings, provided that in the event the Chairman of the Board is
absent from an annual directors meeting the Board shall appoint another director to preside at
such meeting.
7. REGULAR MEETING OF DIRECTORS
Regular meetings of the Board of Directors may be held with or without notice at such time and
place as may be from time to time determined by the Board of Directors. The Chairman of the Board
shall preside at all regular directors meetings, provided that in the event the Chairman of the
Board is absent from a regular directors meeting the Board shall appoint another director to
preside at such meeting.
8. SPECIAL MEETINGS OF DIRECTORS
Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief
Executive Officer or the President. The Secretary shall call special meetings of the Board of
Directors when requested in writing by any three Directors. Such special meeting shall be held at
the date and time specified in the notice of meeting. The Chairman of the Board shall preside at
all special directors meetings, provided that in the event the Chairman of the Board is absent
from a special directors meeting the Board shall appoint another director to preside at such
meeting.
9. PLACE OF DIRECTORS MEETINGS
All meetings of the Board of Directors shall be held either at the principal office of the
Corporation or at such other place, either within or without the State of Delaware, as shall be
specified in the notice of meeting or executed waiver of notice.
10. NOTICE OF DIRECTORS MEETINGS
Notice of special meetings of the Board of Directors may be served not less than three hours before
the date and time fixed for such meeting, by oral, written or electronic communication stating the
time and place thereof or if by mail not less than three days before the date fixed for such
meeting. Any oral notice may be given to each member of the Board of Directors at his or her
office or his or her address as it appears on the books of the Corporation, whether or not the
director is present personally to receive it. Any written or electronic notice shall be addressed
to each member of the Board of Directors at his or her office or his or her address as it appears
on the books of the Corporation. No notice shall be required of a regular meeting if the time and
place of such meetings are fixed by the Board of Directors.
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In any case where all of the directors execute a waiver of notice of the time and place of meeting,
no notice thereof shall be required, and any such meeting shall be held at the time and at the
place specified in the waiver of notice. Attendance of a director at any meeting shall constitute
a waiver of notice of such meeting, except where the directors attend a meeting for the express
purpose of objecting to the transaction of any business on the grounds that the meeting is not
lawfully called or convened.
Neither the business to be transacted at, nor the purpose of, any meeting of the Board of Directors
need be specified in the notice or waiver of notice of such meeting.
On consent of a director, notice of the date, time, place, or purpose of a regular or special
meeting of the Board of Directors may be given to the director by electronic transmission. The
director may specify the form of electronic transmission to be used to communicate notice. The
director may revoke this consent by written notice to the Corporation. The directors consent is
deemed to be revoked if the Corporation is unable to deliver by electronic transmission two
consecutive notices and the Secretary of the Corporation or other person responsible for delivering
the notice on behalf of the Corporation knows that the delivery of these two electronic
transmissions was unsuccessful. The inadvertent failure to treat the unsuccessful transmissions as
a revocation of the directors consent does not invalidate a meeting or other action. An affidavit
of the Secretary or other agent of the Corporation that notice has been given by electronic
transmission is, in the absence of fraud, prima facie evidence that the notice was given. Notice
under this section is deemed given when the notice is: (1) transmitted to a facsimile number
provided by the director for the purpose of receiving notice; (2) transmitted to an electronic mail
address provided by the director for the purpose of receiving notice; (3) posted on an electronic
network and a message is sent to the director at the address provided by the director for the
purpose of alerting the director of a posting; or (4) communicated to the director by any other
form of electronic transmission consented to by the director.
11. QUORUM OF DIRECTORS
A majority of the number of directors fixed by, or in the manner provided in, the Certificate of
Incorporation or these Bylaws shall constitute a quorum for the transaction of business unless a
different number or portion is required by law or the Certificate of Incorporation or these Bylaws.
In no case may the Corporations Certificate of Incorporation or these Bylaws provide that less
than one-half of the number of directors so fixed constitute a quorum. The act of the majority of
the directors present at a meeting at which a quorum is present shall be the act of the Board of
Directors, unless the act of a greater number is required by law or the Certificate of
Incorporation or
these Bylaws.
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A director who has a direct or indirect interest in a matter to be voted on at a meeting of the
Board of Directors may be counted in determining whether a quorum is present.
12. COMPENSATION
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board of
Directors shall have authority to fix the compensation of directors, including fees and
reimbursement of expenses.
13. UNANIMOUS WRITTEN CONSENT OF DIRECTORS OR COMMITTEE MEMBERS
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at a meeting of the Board of Directors or any committee may be
taken without a meeting if a consent in writing, setting forth the action so taken, is signed by
all the members of the Board of Directors or committee, as the case may be. An electronic
transmission by a director consenting to an action to be taken and transmitted by a director is
considered written, signed, and dated for the purposes of this section if the transmission sets
forth or is delivered with information from which the Corporation can determine that the
transmission was transmitted by the director and the date on which the director transmitted the
transmission. Such consent shall have the same force and effect as a unanimous vote at a meeting.
14. COMMITTEES OF THE BOARD OF DIRECTORS
The Board of Directors may designate from among its members one or more committees, each of which
shall be comprised of one or more of its members, and may designate one or more of its members as
alternate members of any committee, who may, subject to any limitations imposed by the Board of
Directors, replace absent or disqualified members at any meeting of that committee. Any such
committee, to the extent provided in the resolution of the Board of Directors or in the Certificate
of Incorporation or the Bylaws, shall have and may exercise all of the authority of the Board of
Directors, subject to the limitations set forth in the Delaware General Corporation Law.
A majority of the number of committee members fixed by the Board of Directors shall constitute a
quorum for the transaction of business by the Committee. The act of the majority of the committee
members present at a meeting at which a quorum is present shall be the act of the Committee.
A committee member who has a direct or indirect interest in a matter to be voted on at a meeting of
the Committee may be counted in determining whether a quorum is present.
No committee of the Board of Directors shall have the authority of the Board of Directors in
reference to:
(1) amending the Certificate of Incorporation, except that a committee may, to the extent
provided in the resolution designating that committee or in the Certificate of Incorporation or the
Bylaws, exercise the authority of the Board of Directors vested in it in accordance with Section
141 of the Delaware General Corporation Law;
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(2) approving a plan of merger, share exchange, or conversion of the Corporation;
(3) recommending to the shareholders the sale, lease, or exchange of all or substantially all
of the property and assets of the Corporation otherwise than in the usual and regular course of its
business;
(4) recommending to the shareholders a voluntary dissolution of the Corporation or a
revocation thereof;
(5) amending, altering, or repealing the Bylaws of the Corporation or adopting new Bylaws of
the Corporation;
(6) filling vacancies in the Board of Directors;
(7) filling vacancies in or designating alternate members of any such committee;
(8) filling any directorship to be filled by reason of an increase in the number of directors;
(9) electing or removing officers of the Corporation or members or alternate members of any
such committee;
(10) fixing the compensation of any member or alternate members of such committee; or
(11) altering or repealing any resolution of the Board of Directors that by its terms provides
that it shall not be so amendable or repealable.
Unless the resolution designating a particular committee, the Certificate of Incorporation, or the
Bylaws expressly so provide, no committee of the Board of Directors shall have the authority to
authorize a distribution or to authorize the issuance of shares of the Corporation.
The designation of a committee of the Board of Directors and the delegation thereto of authority
shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility
imposed by law.
Committees appointed by the Board of Directors may appoint Subcommittees to take the actions
delegated to the Committee by the Board of Directors.
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ARTICLE IV OFFICERS
1. NUMBER OF OFFICERS
The officers of the Corporation shall consist of a Chief Executive Officer, a President, Chief
Financial Officer, and a Secretary, each of whom shall be elected by the Board of Directors at such
time and in such manner as may be prescribed by the Bylaws. Such other officers, assistant
officers, and agents as may be deemed necessary may be elected or appointed by the Board of
Directors or chosen in such other manner as may be prescribed by these Bylaws. Any two (2) or more
offices may be held by the same person.
2. ELECTION OF OFFICERS
All officers shall be elected at the annual meeting of the Board of Directors. If any office is
not filled at such annual meeting, it may be filled at any subsequent regular or special meeting of
the board. The Board of Directors at such annual meeting, or at any subsequent regular or special
meeting may also elect or appoint such other officers and assistant officers and agents as may be
deemed necessary.
All officers and assistant officers shall be elected to serve until the next annual meeting of
directors (following the next annual meeting of shareholders) or until their successors are
elected; provided, that any officer or assistant officer elected or appointed by the Board of
Directors may be removed with or without cause at any regular or special meeting of the Board of
Directors whenever in the judgment of the Board of Directors 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. Any agent appointed shall serve for such term, not longer than the next
annual meeting of the Board of Directors, as shall be specified, subject to like right of removal
by the Board of Directors. If any office becomes vacant for any reason, the vacancy may be filled
by the Board of Directors.
3. POWERS OF OFFICERS
Each officer shall have, subject to these Bylaws, in addition to the duties and powers specifically
set forth herein, such powers and duties as are commonly incident to that office and such duties
and powers as the Board of Directors shall from time to time designate. All officers shall perform
their duties subject to the directions and under the supervision of the Board of Directors. The
Chief Executive Officer or the President may secure the fidelity of any and all officers by bond or
otherwise.
All officers and agents of the Corporation, as between themselves and the Corporation, shall have
such authority and perform such duties in the management of the Corporation as may be provided in
these Bylaws, or as may be determined by resolution of the Board of Directors not inconsistent with
these Bylaws.
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In the discharge of any duty imposed or power conferred upon an officer of the Corporation, the
officer may in good faith and ordinary care rely on information, opinions, reports, or statements,
including financial statements and other financial data, concerning the Corporation or another
person, that were prepared or presented by: (1) one or more other officers or employees of the
Corporation including members of the Board of Directors; or (2) legal counsel, public accountants,
investment bankers, or other persons as to matters the officer reasonably believes are within the
persons professional or expert competence.
An officer is not relying in good faith within the meaning of this section if the officer has
knowledge concerning the matter in question that makes reliance otherwise permitted by this
subsection unwarranted.
4. CHIEF EXECUTIVE OFFICER AND PRESIDENT
The Chief Executive Officer (CEO) shall be the chief executive officer of the Corporation. The
CEO shall see that all orders and resolutions of the board are carried out, subject however, to the
right of the directors to delegate specific powers, except such as may be by statute exclusively
conferred on the CEO or the President, or on any other officers of the Corporation.
The CEO, President, or any Vice-President shall execute bonds, mortgages and other instruments
requiring a seal, in the name of the Corporation. When authorized by the board, the CEO, President
or any Vice-President may affix the seal to any instrument requiring the same, and the seal when so
affixed shall be attested by the signature of either the Secretary or an Assistant Secretary. The
CEO, President or any Vice-President shall sign certificates of stock.
The CEO or President shall submit a report of the operations of the Corporation for the year to the
directors at their meeting next preceding the annual meeting of the shareholders and to the
shareholders at their annual meeting.
5. VICE-PRESIDENTS
The Vice-President, or Vice-Presidents, if any shall be appointed, in order of their rank as fixed
by the Board of Directors, shall, in the absence or disability of the President, perform the duties
and exercise the powers of the President, and they shall perform such other duties as the Board of
Directors shall prescribe.
6. SECRETARY AND ASSISTANT SECRETARIES
The Secretary shall attend all meetings of the Board of Directors and all meetings of the
shareholders and shall record all votes and the minutes of all proceedings and shall perform like
duties for the standing committees when required. The Secretary shall give or cause to be given
notice of all meetings of the shareholders and all meetings of the Board of Directors and shall
perform such other duties as may be prescribed by the Board of Directors. The Secretary shall keep
in safe custody the seal of the Corporation, and when authorized by the Board of Directors, affix
the same to any instrument requiring it, and when so affixed, it shall be attested by the
Secretarys signature or by the signature of an Assistant Secretary.
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The Assistant Secretaries shall in order of their rank as fixed by the Board of Directors, in the
absence or disability of the Secretary, perform the duties and exercise the powers of the
Secretary, and they shall perform such other duties as the Board of Directors shall prescribe.
In the absence of the Secretary or an Assistant Secretary, the minutes of all meetings of the board
and shareholders shall be recorded by such person as shall be designated by the Chief Executive
Officer, the President or by the Board of Directors.
7. CHIEF FINANCIAL OFFICER AND TREASURER
The Chief Financial Officer shall have 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.
The Chief Financial Officer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements. The Chief Financial Officer
shall keep and maintain the Corporations books of account and shall render to the Chief Executive
Officer, the President, if the President is not the same individual as the Chief Financial Officer,
and directors an account of all of his or her transactions as Chief Financial Officer and of the
financial condition of the Corporation and exhibit the books, records, and accounts to the Chief
Executive Officer, the President, or directors at any time. The Chief Financial Officer shall
disburse funds for capital expenditures as authorized by the Board of Directors and in accordance
with the orders of the Chief Executive Officer or the President, if the President is not the same
individual as the Chief Financial Officer, and present to the Chief Executive Officer or the
President, if the President is not the same individual as the Chief Financial Officer, for his or
her attention any requests for disbursing funds if in the judgment of the Chief Financial Officer
any such request is not properly authorized. The Chief Financial Officer shall perform such other
duties as may be directed by the Board of Directors or by the Chief Executive Officer or the
President, if the President is not the same individual as the Chief Financial Officer.
If required by the Board of Directors, the Chief Financial Officer shall give the Corporation a
bond 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 the office and for the restoration to the
Corporation, in case of death, resignation, retirement, or removal from office, of all books,
papers, vouchers, money, and other property of whatever kind in the incumbents possession or under
the incumbents control belonging to the Corporation.
The Treasurer, if one shall be appointed, shall, in the absence or disability of the Chief
Financial Officer perform the duties and exercise the powers of the Chief Financial Officer, and
they shall perform such other duties as the Board of Directors shall prescribe.
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ARTICLE V SHARES: STOCK CERTIFICATES, ISSUANCE, TRANSFER, ETC.
1. CERTIFICATES OF STOCK
Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in
the name of the corporation by, the Chairman and Chief Executive Officer, the President, or a
Vice-president, and by the Chief Financial Officer or Treasurer or the Secretary or an Assistant
Secretary of the corporation, bearing the corporate seal or a facsimile thereof certifying the
number of shares owned by him in the corporation.
Where a certificate is signed (1) by a transfer agent or an assistant transfer agent or (2) by a
transfer clerk acting on behalf of the corporation and a registrar, the signature of any such
Chairman and Chief Executive Officer, the President, or a Vice-President, and by the Chief
Financial Officer or Treasurer or the Secretary or an Assistant Secretary may be facsimile. In
case any officer or officers who have signed, or whose facsimile signature or signatures have been
used on, any such certificate or certificates shall cease to be such officer or officers of the
corporation, whether because of death, resignation, or otherwise, before such certificate or
certificates have been delivered by the corporation, such certificate or certificates may
nevertheless be adopted by the corporation and be issued and delivered as though the person or
persons who signed such certificate or certificates or whose facsimile signature or signatures have
been used thereon had not ceased to be such officer or officers of the corporation.
2. LOST CERTIFICATES
The Secretary, Chief Financial Officer, or Treasurer who has charge of the transfer and issuance of
stock of the corporation shall issue a new certificate or certificates in place of any certificate
or certificates theretofore issued by the corporation allegedly lost, upon the submission by the
owner of such lost or destroyed certificate, or his legal representative, to the corporation of 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 or destroyed.
3. TRANSFERS 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, assignment, 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.
4. 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.
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5. UNCERTIFICATED SHARES
The board of directors of the corporation may provide by resolution or resolutions that some or all
of any or all classes or series of its stock shall be uncertificated shares. Any such resolution
shall not apply to shares represented by a certificate until such certificate is surrendered to the
corporation.
ARTICLE VI DIVIDEND AND DISTRIBUTIONS
1. DECLARATION
The Board of Directors may declare at any annual, regular, or special meeting of the Board of
Directors and the Corporation may pay, dividends on the outstanding shares in cash, property, or in
the shares of the Corporation to the extent permitted by, and subject to the provisions of, the
laws of the State of Delaware.
2. RESERVES
The Board of Directors may, by resolution, create a reserve or reserves out of the Corporations
surplus or designate or allocate any part or all of the Corporations surplus in any manner for any
proper purpose or purposes, including but not limited to creating a reserve fund to meet
contingencies or for equalizing dividends or for repairing or maintaining any property of the
Corporation, and may increase, decrease, or abolish any such reserve, designation, or allocation in
the same manner.
ARTICLE VII INDEMNIFICATION AND INSURANCE
1. INDEMNIFICATION
The Corporation shall, to the fullest extent permitted by and pursuant to the provisions of the
Delaware General Corporation Law, indemnify and advance expenses to any person: (1) who is or was a
director of the Corporation; (2) who, while a director of the Corporation, is or was serving at the
request of the Corporation as a director, officer, partner, venturer, proprietor, trustee,
employee, agent, or similar functionary of another foreign or domestic corporation, employee
benefit plan, other enterprise, or other entity; (3) who is or was an officer of the Corporation;
(4) who is or was an employee of the Corporation; (5) who is or was an agent of the Corporation;
and (6) who is not or was not an officer, employee, or agent of the Corporation but who is or was
serving at the request of the Corporation as a director, officer, partner, venturer, proprietor,
trustee, employee, agent, or similar functionary of another foreign or domestic corporation,
employee benefit plan, other enterprise, or other entity.
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2. INSURANCE
The Corporation may purchase and maintain insurance or another arrangement on behalf of any
person who is or was a director, officer, employee, or agent of the Corporation or who is or was
serving at the request of the Corporation as a director, officer, partner, venturer, proprietor,
trustee, employee, agent, or similar functionary of another foreign or domestic corporation,
employee benefit plan, other enterprise, or other entity, against any liability asserted against
him or her and incurred by him or her in such a capacity or arising out of his or her status as
such a person, whether or not the Corporation would have the power to indemnify him or her against
that liability. If the insurance or other arrangement is with a person or entity that is not
regularly engaged in the business of providing insurance coverage, the insurance or arrangement may
provide for payment of a liability with respect to which the Corporation would not have the power
to indemnify the person only if including coverage for the additional liability has been approved
by the shareholders of the Corporation. Without limiting the power of the Corporation to procure
or maintain any kind of insurance or other arrangement, the Corporation may, for the benefit of
persons indemnified by the Corporation, (1) create a trust fund; (2) establish any form of
self-insurance; (3) secure its indemnity obligation by grant of a security interest or other lien
on the assets of the Corporation; or (4) establish a letter of credit, guaranty, or surety
arrangement. The insurance or other arrangement may be procured, maintained, or established within
the Corporation or with any insurer or other person deemed appropriate by the Board of Directors
regardless of whether all or part of the stock or other securities of the insurer or other person
are owned in whole or part by the Corporation. In the absence of fraud, the judgment of the Board
of Directors as to the terms and conditions of the insurance or other arrangement and the identity
of the insurer or other person participating in an arrangement shall be conclusive and the
insurance or arrangement shall not be voidable and shall not subject the directors approving the
insurance or arrangement to liability, on any ground, regardless of whether directors participating
in the approval are beneficiaries of the insurance or arrangement.
ARTICLE VIII MISCELLANEOUS
1. WAIVER OF NOTICE
Whenever any notice is required to be given to any shareholder or director of the Corporation under
the provisions of the Delaware General Corporation Law 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 a waiver by electronic transmission by the person entitled to notice,
whether before or after the time stated therein, shall be equivalent to the giving of such notice.
2. USE OF ELECTRONIC TRANSMISSION
The Corporation is authorized to use electronic transmissions as defined in the Delaware General
Corporation Law to the full extent allowed by said Law, including, but not limited to the purposes
of notices, proxies, waivers, resignations, and any other purpose for which electronic
transmissions are permitted.
Electronic transmission means a form of communication that: (a) does not directly involve the
physical transmission of paper; (b) creates a record that may be retained, retrieved, and reviewed
by
the recipient; and (c) may be directly reproduced in paper form by the recipient through an
automated process.
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3. MEETINGS BY TELEPHONE CONFERENCE OR OTHER REMOTE COMMUNICATIONS TECHNOLOGY
Subject to the provisions for notice required by these Bylaws and the Delaware General Corporation
Law for notice of meetings, directors and shareholders may participate in and hold a meeting by
means of conference telephone or similar communications equipment by which all persons
participating in the meeting can hear each other. Or, another suitable electronic communications
system may be used including videoconferencing technology or the Internet, but only if, each
director or shareholder entitled to participate in the meeting consents to the meeting being held
by means of that system and the system provides access to the meeting in a manner or using a method
by which each director and shareholder participating in the meeting can communicate concurrently
with each other participant. Participation in such meeting shall constitute attendance and
presence in person at such meeting, except where a person participates in the meeting for the
express purpose of objecting to the transaction of any business on the ground that the meeting is
not lawfully called or convened.
4. SEAL
The Corporation may adopt a corporate seal in such form as the Board of Directors may determine.
The Corporation shall not be required to use the corporate seal and the lack of the corporate seal
shall not affect an otherwise valid contract or other instrument executed by the Corporation.
5. CHECKS, DRAFTS, ETC.
All checks, drafts, or other instruments for payment of money or notes of the Corporation shall be
signed by such officer or officers or such other person or persons as shall be determined from time
to time by Resolution of the Board of Directors.
6. FISCAL YEAR
The fiscal year of the Corporation shall be as determined by the Board of Directors.
ARTICLE IX CONSTRUCTION
1. PRONOUNS AND HEADINGS
All personal pronouns used in these Bylaws shall include the other gender whether used in masculine
or feminine or neuter gender, and the singular shall include the plural whenever and as often as
may be appropriate. All headings herein are for convenience only and neither limit nor amplify the
provisions of these Bylaws.
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2. INVALID PROVISIONS
If any one or more of the provisions of these Bylaws, or the applicability of any such provision to
a specific situation, shall be held invalid or unenforceable, such provision shall be modified to
the minimum extent necessary to make it or its application valid and enforceable, and the validity
and enforceability of all other provisions of these Bylaws and all other applications of any such
provision shall not be affected thereby.
3. REFERENCES TO EXISTING STATUTES
References in these Bylaws to any existing statute also include any successor law to such statute.
ARTICLE X AMENDMENT OF BYLAWS
The Board of Directors may amend or repeal these Bylaws, or adopt new Bylaws, unless the
Certificate of Incorporation or the Delaware General Corporation Law reserves the power exclusively
to the shareholders in whole or part, or the shareholders in amending, repealing, or adopting a
particular bylaw expressly provide that the Board of Directors may not amend or repeal that bylaw.
Adopted by the Board of Directors as of October 5, 2009.
/s/ Salvatore M. Quadrino
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and Secretary |
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