Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) HTML 1.79M
2: EX-3.1 Ex-3.1: Third Amended and Restated Certificate of 23 97K
Incorporation
3: EX-3.2 Ex-3.2: Amended and Restated Bylaws 14 61K
11: EX-4.10 Ex-4.10: Form of Warrant 29 120K
4: EX-4.2 Ex-4.2: Amended and Restated Stockholders 50 169K
Agreement
5: EX-4.3 Ex-4.3: Registration Rights Agreement 12 64K
6: EX-4.4 Ex-4.4: Registration Rights Agreement 22 89K
7: EX-4.5 Ex-4.5: Registration Rights Agreement 64 188K
8: EX-4.7 Ex-4.7: Securities Purchase Agreement 83 314K
9: EX-4.8 Ex-4.8: Indenture 107 506K
10: EX-4.9 Ex-4.9: Form of Senior Secured Note 20 65K
12: EX-10.1 Ex-10.1: Advisory Services Agreement 25 87K
21: EX-10.13 Ex-10.13: Master Spectrum Acquisition Agreement 39 166K
22: EX-10.14 Ex-10.14: First Addendum and Amendment to Master 13 66K
Spectrum Acquisition Agreement
23: EX-10.15 Ex-10.15: Itfs Capacity Use and Royalty Agreement 67 221K
24: EX-10.16 Ex-10.16: Spectrum Access and Loan Facility 103 418K
Agreement
25: EX-10.17 Ex-10.17: Warrant Agreement 9 42K
26: EX-10.18 Ex-10.18: Letter Agreement 2 19K
27: EX-10.19 Ex-10.19: Spectrum Acquisition Consulting 24 93K
Agreement
13: EX-10.2 Ex-10.2: Indemnification Agreement 12 67K
28: EX-10.20 Ex-10.20: Letter Agreement 3 20K
29: EX-10.21 Ex-10.21: Amendment and Consent 3 19K
30: EX-10.22 Ex-10.22: Second Amendment and Consent 4 22K
31: EX-10.23 Ex-10.23: Spectrum Option Agreement 103 377K
32: EX-10.24 Ex-10.24: Ebs Capacity Use and Royalty Agreement 65 217K
33: EX-10.27 Ex-10.27: Stock Purchase Agreement 43 189K
34: EX-10.28 Ex-10.28: Stock Purchase Agreement 34 145K
14: EX-10.3 Ex-10.3: Form of Indemnification Agreement 12 66K
35: EX-10.32 Ex-10.32: Credit Agreement 34 111K
36: EX-10.33 Ex-10.33: Security Agreement 16 61K
37: EX-10.34 Ex-10.34: Movable Hypothec Agreement 15 61K
38: EX-10.35 Ex-10.35: Purchase Agreement 44 169K
39: EX-10.36 Ex-10.36: Equipment Lease Agreement 18 77K
40: EX-10.37 Ex-10.37: Purchase Agreement 33 100K
41: EX-10.38 Ex-10.38: Purchase Agreement 40 124K
15: EX-10.4 Ex-10.4: Letter Agreement 2 20K
42: EX-10.43 Ex-10.43: Stock Purchase Agreement 45 193K
43: EX-10.44 Ex-10.44: Purchase Agreement 28 96K
44: EX-10.49 Ex-10.49: Loan Agreement 74 358K
16: EX-10.5 Ex-10.5: Letter Agreement 2± 18K
45: EX-10.50 Ex-10.50: Guarantee and Collateral Agreement 34 166K
17: EX-10.6 Ex-10.6: Letter Agreement 2± 18K
46: EX-10.64 Ex-10.64: Office Lease Agreement 47 260K
47: EX-10.65 Ex-10.65: Securities Purchase Agreement 55 208K
48: EX-10.66 Ex-10.66: Investment Agreement 12 62K
49: EX-10.67 Ex-10.67: Indemnification Agreement 15 66K
50: EX-10.68 Ex-10.68: Stock Purchase Agreement 64 226K
51: EX-10.69 Ex-10.69: Stock Purchase Agreement 113 358K
18: EX-10.7 Ex-10.7: Employment Agreement 11 56K
19: EX-10.8 Ex-10.8: Letter Agreement 2± 18K
20: EX-10.9 Ex-10.9: Stock Option Plan 15 74K
52: EX-21.1 Ex-21.1: List of Subsidiaries 2± 17K
53: EX-23.1 Ex-23.1: Consent of Deloitte and Touche LLP HTML 15K
EX-3.2 — Ex-3.2: Amended and Restated Bylaws
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EXHIBIT 3.2
CLEARWIRE CORPORATION
BYLAWS
AMENDMENTS
[Download Table]
DATE OF AMENDMENT ARTICLE TEXT OR EFFECT OF AMENDMENT
----------------- ------- ---------------------------
January 21, 2004 Article IV, "If the Board appoints or elects a President
Section 4.3 of any division of the corporation, such
President shall have general supervision of
the operations of that division and shall
have such other authority and perform such
other duties as the Board, any duly
authorized committee of directors, the Chief
Executive Officer or the President assigns to
him or her."
May 11, 2004 Article II, second sentence deleted and amended to read
Section 2.1 as follows:
"At such time as the Corporation has more
than one shareholder the number of directors
shall be not less than five (5) nor more than
eleven (11) as fixed from time to time by
vote of a majority of the entire Board or by
stockholders holding a majority of the votes
entitled to be cast; provided, however, that
no decrease in the number of directors may
shorten the term of any incumbent director."
May 11, 2004 Article V, deleted and amended in entirety to read as
Section 5.3 follows
"Except as otherwise set forth in this
paragraph, any vacancy in the office of any
director or officer through death,
resignation, removal, disqualification, or
other cause, and any additional directorship
resulting from increase in the number of
directors, shall be filled at any time by a
majority of the directors then in office
(even though less than a quorum remains) or
by stockholders holding a majority of the
votes entitled to be cast and the person so
chosen shall hold office until his or her
successor shall have been elected and
qualified; or, if the person so chosen is a
director elected to fill a vacancy, such
person shall hold office for the unexpired
term of his or her predecessor."
1
[Download Table]
DATE OF AMENDMENT ARTICLE TEXT OR EFFECT OF AMENDMENT
----------------- ------- ---------------------------
May 11, 2004 Article VI, second sentence deleted and amended to read
Section 6.1 as follows:
"Each certificate shall be signed by the
Chairman of the Board, the Chief Executive
Officer, the President or Vice President and
by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary of
the Corporation."
October 13, 2005 Article III, Added the following sentence:
Section 3.2
"The Chief Executive Officer and President
may also appoint one or more Executive Vice
Presidents, Senior Vice Presidents and Vice
Presidents."
2
FLUX U.S. CORPORATION
A DELAWARE CORPORATION (THE "CORPORATION")
BYLAWS
ARTICLE I
STOCKHOLDERS
Section 1.1 Annual Meeting.
An annual meeting of stockholders for the purpose of electing directors and
of transacting such other business as may come before it shall be held each year
within 90 to 180 days after the Corporation's fiscal year end at a date, time
and place, either within or without the State of Delaware, as may be specified
by the Board of Directors (the "Board").
Section 1.2 Special Meetings.
Special meetings of stockholders for any purpose or purposes may be held at
any time upon call of the Chairman of the Board, the Chief Executive Officer or
the President, at such time and place either within or without the State of
Delaware as may be stated in the notice. Holders of not less than a majority of
all the votes attributable to the issued and outstanding shares of the
Corporation's stock taken together and not as separate classes may call special
meetings of the stockholders for any purpose by giving notice to the Corporation
as specified in Section 1.10(c).
Section 1.3 Notice of Meetings.
Written notice of duly called meetings of the stockholders, stating the
place, date, and hour thereof shall be given by the Chairman of the Board, the
Chief Executive Officer, the President or the Secretary, to each stockholder
entitled to vote thereat at least ten days but not more than sixty days before
the date of the meeting, unless a different period is prescribed by law. The
notice of an annual meeting shall state that the meeting is called for the
election of directors and for the transaction of other business which may
properly come before the meeting, and shall, if any other action which could be
taken at a special meeting is to be taken at such annual meeting, state the
nature of such action. The notice of a special meeting shall in all instances
state the purpose or purposes for which the meeting is called. Upon written
request delivered to the Corporation in accordance with Section 1.10(c) hereof
by the holders of shares representing not less than the number of votes
specified in Section 1.2 hereof, the stockholders may request that the
Corporation call a special meeting of stockholders. Within 30 days of such a
request, it shall be the duty of the Secretary to give notice of a special
meeting of stockholders to be held on such date and at such place and hour as
the Secretary may fix, and if the Secretary shall neglect or refuse to issue
such notice, the person making the request may do so and may fix the date for
such meeting.
Section 1.4 Quorum.
Except as otherwise provided by law or in the Certificate of Incorporation
or these Bylaws, at any meeting of stockholders, the holders of shares
representing a majority of all of the votes assigned under the Certificate of
Incorporation to the outstanding shares of the Corporation entitled to vote at
the meeting shall be present in person or represented by proxy in order to
constitute a quorum for the transaction of any business; provided, however that
where a separate vote by a class or classes is required, shares representing a
majority of all the votes assigned under the Certificate of Incorporation to the
outstanding shares of such class or classes, present in person or represented by
proxy at the meeting, shall constitute a quorum entitled to take action with
respect to that vote on that matter. In the absence of a quorum, a majority in
voting interest of the stockholders present or the chairman of the meeting may
adjourn the meeting from time to time in the manner provided in Section 1.5 of
these Bylaws until a quorum shall be present.
Section 1.5 Adjournment.
Any meeting of stockholders, annual or special, may adjourn from time to
time to reconvene at the same or some other place, and notice need not be given
of any such adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken. At any adjourned meeting at which a
quorum is present, any business may be transacted which might have been
transacted at the original meeting. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 1.6 Organization.
The Chairman of the Board, or in his or her absence, the Chief Executive
Officer, the President, or a Vice President (in order of seniority), shall call
to order meetings of stockholders, and shall act as chairman of such meetings.
The Board or, if the Board fails to act, the stockholders, may appoint any
stockholder, director, or officer of the Corporation to act as chairman of any
meeting in the absence of the Chairman of the Board, the Chief Executive
Officer, the President, and all Vice Presidents. The Secretary of the
Corporation shall act as secretary of all meetings of stockholders, but, in the
absence of the Secretary, the chairman of the meeting may appoint any other
person to act as secretary of the meeting.
Section 1.7 Voting.
Except as otherwise provided by law or in the Certificate of Incorporation
or these Bylaws, at any meeting duly called and held at which a quorum is
present, corporate action to be taken by stockholder vote, other than the
election of directors, shall be authorized by a majority of the votes (assigned
under the Certificate of Incorporation to the shares of the Corporation
represented in person or by proxy at the meeting and entitled to vote) cast by
the stockholders entitled to vote and present in person or represented by proxy
at the meeting; provided, however that where a separate vote of a class or
classes is required, corporate action to be taken by such class or classes shall
be authorized by a majority of the votes (assigned under the Certificate of
Incorporation to the shares of the Corporation represented in person or by proxy
at the meeting
and entitled to vote) cast by such class or classes. Directors shall be elected
at each annual meeting of stockholders by a plurality of the votes (assigned
under the Certificate of Incorporation to the shares of the Corporation
represented in person or by proxy at the meeting and entitled to vote) cast by
the stockholders entitled to vote and present in person or represented by proxy
at the meeting.
Section 1.8 Action by Stockholders without Meeting.
Any action required or permitted to be taken at any meeting of stockholders
may be taken without a meeting, without a vote, if a consent in writing, setting
forth the action so taken, shall (a) be signed by the holders of outstanding
stock having not fewer than the minimum number of votes assigned under the
Certificate of Incorporation to the shares of the Corporation that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voting and (b) be delivered to the
Corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the Corporation having
custody of the records of proceedings of meetings of stockholders. Delivery made
to the Corporation's registered office shall be by hand, by verified facsimile,
by nationally recognized courier or by certified mail or registered mail, return
receipt requested. Every written consent shall bear the date of signature of
each stockholder who signs the consent and no written consent shall be effective
to take the corporate action referred to therein unless written consents signed
by the requisite number of stockholders entitled to vote with respect to the
subject matter thereof are delivered to the Corporation, in the manner required
by this Section 1.8, within 60 (or the maximum number permitted by applicable
law) days of the earliest dated consent delivered to the Corporation in the
manner required by this Section 1.8. The validity of any consent executed by a
proxy for a stockholder pursuant to a telegram, cablegram or other means of
electronic transmission transmitted to such proxy holder by or upon the
authorization of the stockholder shall be determined by or at the direction of
the Secretary. A written record of the information upon which the person making
such determination relied shall be made and kept in the records of the
proceedings of the stockholders. Prompt notice of the effectiveness of such
action shall also be given to those stockholders who did not consent in writing.
Section 1.9 Proxy Representation.
Each stockholder entitled to vote at any meeting of stockholders or to
express consent to or dissent from corporate action in writing without a meeting
may authorize another person to act for him, her or it by proxy. No proxy shall
be valid after three years from its date, unless it provides otherwise. Such
authorization may be accomplished by the stockholder or such stockholder's
authorized officer, director, employee or agent (a) executing a writing or
causing his or her signature to be affixed to such writing by any reasonable
means, including facsimile signature, or (b) transmitting or authorizing the
transmission of a telegram, cablegram or other electronic transmission to the
intended holder of the proxy or to a proxy solicitation firm, proxy support
service or similar agent duly authorized by the intended proxy holder to receive
such transmission; provided, that any such telegram, cablegram or other
electronic transmission must either set forth or be accompanied by information
from which it can be determined that the telegram, cablegram or other electronic
transmission was authorized by the stockholder. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or transmission
by which a stockholder has authorized another person to act as proxy for such
stockholder 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.
Section 1.10 Business for Stockholders' Meetings.
(a) At an annual meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting (a) pursuant to the
Corporation's notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by a stockholder of the Corporation who is a stockholder of
record at the time of giving of the notice provided for in this Section 1.10,
who shall be entitled to vote at such meeting and who complies with the notice
procedures set forth in this Section 1.10. For business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) above, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than 60 days nor more than 90 days prior to the anniversary of the
preceding year's annual meeting; provided, however that if the date of the
meeting is changed by more than 30 days from such anniversary date, notice by
the stockholder to be timely must be received no later than the close of
business on the earlier of the 7th day following the date on which notice of the
date of the meeting was mailed or a public announcement of the meeting was made.
A stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the meeting (a) a brief description of the
business desired to be brought before the meeting and the reasons for conducting
such business at the meeting, (b) the name and address, as they appear on the
Corporation's books of the stockholder proposing such business, and the name and
address of the beneficial owner, if any, on whose behalf the proposal is made,
(c) the class and number of shares of stock of the Corporation which are owned
beneficially and of record by such stockholder of record and by the beneficial
owner, if any, on whose behalf the proposal is made, and (d) any material
interest of such stockholder of record and the beneficial owner, if any, on
whose behalf the proposal is made, in such business. Notwithstanding anything in
this Section 1.10 to the contrary, no business shall be conducted at an annual
meeting except in accordance with the procedures set forth in this Section 1.10.
The chairman of the meeting shall, if the facts warrant, determine and declare
to the meeting that (x) a proposal does not constitute proper business to be
transacted at the meeting or (y) business was properly brought before the
meeting in accordance with the procedures prescribed by these Bylaws, and if
(s)he should so determine, (s)he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this Section 1.10, a stockholder
also shall comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder with respect
to the matters set forth in this Section 1.10.
(b) At any special meeting of stockholders, only such business as is
specified in the notice of such special meeting given by or at the direction of
the person or persons calling such meeting, in accordance with Section 1.3
hereof, shall come before such meeting.
(c) Any written notice required to be delivered by a stockholder to the
Corporation pursuant to these Bylaws must be given, either by personal delivery,
by verified facsimile, by nationally recognized courier or by registered or
certified mail, postage prepaid, to the Secretary at the Corporation's principal
executive offices. Any such stockholder notice shall set forth (i) the name and
address of the stockholder proposing such business; (ii) a representation that
the stockholder is entitled to vote at such meeting and a statement of the
number of shares of the Corporation that are beneficially owned by the
stockholder; (iii) a representation that the stockholder intends to appear in
person or by proxy at the meeting to propose such business; and (iv) as to each
matter the stockholder proposes to bring before the meeting, a brief description
of the business desired to be brought before the meeting, the reasons for
conducting such business at the meeting, the language of the proposal (if
appropriate), and any material interest of the stockholder in such business.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 Number and Term of Office.
The business, property, and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors of the Corporation. The number
of directors constituting the entire Board shall initially be two (2). At such
time as the Corporation has more than one shareholder the number of directors
shall be not less than five (5) nor more than eleven (11) as fixed from time to
time by vote of a majority of the entire Board; provided, however that no
decrease in the number of directors may shorten the term of any incumbent
director. Unless a director resigns or is removed, he or she shall hold office
until the next annual meeting of stockholders or until his or her successor is
elected, whichever is later.
Section 2.2 Chairman and Vice Chairman of the Board.
The directors may elect a Chairman and a Vice Chairman of the Board who
shall be subject to the control of and may be removed by the Board. The Chairman
shall be an executive officer as provided in Section 4.1; the Vice Chairman, if
elected, shall have such powers and duties as the Board may assign to him or
her.
Section 2.3 Meetings.
Regular meetings of the Board of Directors may be held with notice at such
time and place as shall from time to time be determined by the Board. Special
meetings of the Board shall be held at such time and place as shall be
designated in the notice of the meeting whenever called by the Chairman, the
Chief Executive Officer (if a director), the President (if a director) or by a
majority of the directors then in office.
Section 2.4 Notice of Meetings.
The Secretary, or in his or her absence any other officer of the
Corporation, shall give two calendar days' notice to each director by whom such
notice is not waived, either personally or by mail, courier, telephone,
facsimile, electronic mail or other form of electronic transmission,
or other medium of communication. Unless otherwise stated in the notice thereof,
any and all business may be transacted at any meeting without specification of
such business in the notice.
Section 2.5 Quorum and Organization of Meetings.
A majority of the total number of members of the Board as constituted from
time to time shall constitute a quorum for the transaction of business or, if
vacancies exist on the Board, a majority of the total number of directors then
serving on the Board provided that such number may be not less than one-third of
the total number of directors fixed in the manner provided by these Bylaws. If
at any meeting of the Board (whether or not adjourned from a previous meeting)
there shall be less than a quorum present, a majority of those present may
adjourn the meeting to another time and place, and the meeting may be held as
adjourned without further notice or waiver. Except as otherwise provided by law
or in the Certificate of Incorporation or these Bylaws, a majority of the
directors present at any meeting at which a quorum is present may decide any
question brought before such meeting. Meetings shall be presided over by the
Chairman, or in his or her absence, by the Chief Executive Officer, the
President, or such other person as the directors may select. The Secretary of
the Corporation shall act as secretary of the meeting, but in his or her
absence, the chairman of the meeting may appoint any person to act as secretary
of the meeting. A director of the Corporation present at a Board or committee
meeting at which action on any corporate matter is taken shall be presumed to
have assented to the action taken unless his or her dissent is entered in the
minutes of the meeting, or unless such director files a written dissent to such
action with the person acting as the secretary of the meeting before the
adjournment thereof, or forwards such dissent by registered mail to the
Secretary of the Corporation immediately after the adjournment of the meeting. A
director who voted in favor of such action may not dissent.
Section 2.6 Committees.
The Board may by resolution designate one or more committees, each
committee to consist of one or more of the directors of the Corporation;
provided, however that persons who are not directors of the Corporation may also
be members of such committees to the extent provided in the resolution of the
Board. 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. 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 they constitute a quorum, may unanimously appoint another
member of the Board to act at the meeting in place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution approved by every member of the Board and permitted by law shall have
and may exercise all the powers and authority of the Board in the management of
the business, property, and affairs of the Corporation. Each committee of the
Board may fix its own rules and procedures. Notice of meetings of committees,
other than of regular meetings provided for by the rules, shall be given to
committee members in a manner prescribed by such committee's rules or, if not so
prescribed, in a manner permitted for delivery of notices of meetings of the
Board. All action taken by committees shall be recorded in minutes of the
meetings.
Section 2.7 Action Without Meeting.
Nothing contained in these Bylaws shall be deemed to restrict the power of
members of the Board or any committee designated by the Board to take any action
required or permitted to be taken by them without a meeting, if all the members
of the Board or committee, as the case may be, consent in writing or by
electronic transmission to the adoption, and the writing or writings or
electronic transmission or transmissions are filed with the minutes of
proceedings of the Board or committee. Such filing shall be in paper form if the
minutes are maintained in paper form and in electronic form if the minutes are
maintained in electronic form.
Section 2.8 Telephone Meetings.
Nothing contained in these Bylaws shall be deemed to restrict the right of
members of the Board, or any committee designated by the Board, to participate
in a meeting of the Board, or a committee thereof, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation by such means
shall constitute presence in person at a meeting.
ARTICLE III
OFFICERS
Section 3.1 Number, Election and Term.
Officers of the Corporation shall be a President and a Secretary. The Board
shall elect Officers at its first meeting, and at each regular annual meeting of
the Board thereafter. Each Officer shall hold office until the next succeeding
annual meeting of the Directors and until his successor shall be elected and
qualified. Any one person may hold more than one office if it is deemed
advisable by the Board.
Section 3.2 Additional Officers and Agents.
The Board may elect or appoint such other officers (including a Chairman of
the Board, a Chief Executive Officer, one or more Vice Presidents, a Treasurer,
Controller and one or more Assistant Treasurers and Assistant Secretaries) as it
may deem necessary or desirable. Each officer shall hold office for such term as
may be prescribed by the Board from time to time.
ARTICLE IV
DUTIES OF OFFICERS
Section 4.1 Chairman of the Board.
The Chairman of the Board shall be an officer of the corporation
responsible for guiding the strategic development of the Corporation and shall
perform such other duties as shall be assigned to him or her by the Board from
time to time. The Chairman of the Board shall preside over meetings of the Board
and stockholders unless another officer is appointed or designated by the Board
as chairman of such meeting. In the event of the death of the Chief Executive
Officer or his or her inability to act, the Chairman of the Board shall perform
the duties of the Chief
Executive Officer, except as may be limited by resolution of the Board, with all
the powers of and subject to all the restrictions on the Chief Executive
Officer.
Section 4.2 Chief Executive Officer.
The Chief Executive Officer of the Corporation shall have general
supervision of the business, affairs and property of the Corporation, and over
its several officers. In general, the Chief Executive Officer shall have all
authority incident to the office of Chief Executive Officer and shall have such
other authority and perform such other duties as may from time to time be
assigned by the Board or by any duly authorized committee of directors. The
Chief Executive Officer shall have the power to fix the compensation of elected
officers whose compensation is not fixed by the Board or a committee thereof and
also to engage, discharge, determine the duties and fix the compensation of all
employees and agents of the Corporation necessary or proper for the transaction
of the business of the Corporation. If the Chief Executive Officer is not also
the Chairman of the Board, then the Chief Executive Officer shall report to the
Chairman of the Board. The Chief Executive Officer shall, unless a Chairman of
the Board has been elected and is present, preside at meetings of the
stockholders and the Board.
Section 4.3 President.
The President shall have general supervision of the operations of the
Corporation. In general, but subject to any contractual restriction, the
President shall have all authority incident to the office of President and shall
have such other authority and perform such other duties as may from time to time
be assigned by the Board or by any duly authorized committee of directors or by
the Chairman of the Board. The President shall, at the request or in the absence
or disability of the Chairman of the Board or the Chief Executive Officer, or if
no Chairman of the Board or Chief Executive Officer has been appointed by the
Board, perform the duties and exercise the powers of such officer or officers.
Section 4.4 Vice Presidents.
Each vice president shall have such powers and duties as the Board, the
Chief Executive Officer or the President assigns to him or her.
Section 4.5 Secretary.
The Secretary shall be the secretary of, and keep the minutes of, all
meetings of the Board and the stockholders, and shall have such other powers and
duties as the Board or the President assigns to him or her. In the absence of
the Secretary from any meeting, the minutes shall be kept by the person
appointed for that purpose by the chairman of the meeting.
Section 4.6 Treasurer.
The Treasurer of the Corporation shall be in charge of the Corporation's
books and accounts. Subject to the control of the Board, the Treasurer shall
have such other powers and duties as the Board, the Chief Executive Officer or
the President assigns to him or her.
ARTICLE V
RESIGNATIONS, REMOVALS, AND VACANCIES
Section 5.1 Resignations.
Any director or officer of the Corporation, or any member of any committee,
may resign at any time by giving written notice to the Board, the Chairman of
the Board, the Chief Executive Officer, the President, or the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein or, if the time be not specified therein, then upon receipt thereof. The
acceptance of such resignation shall not be necessary to make it effective.
Section 5.2 Removals.
Any officer elected by the Board may be removed by the Board whenever in
its judgment the best interests of the Corporation would be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of the
person so removed. The Board may remove with or without cause any member of any
committee and may, with or without cause, disband any committee. Any director or
the entire Board may be removed, with or without cause, by the holders of a
majority of the votes entitled at the time to vote at an election of directors.
Section 5.3 Vacancies.
Except as otherwise set forth in this paragraph, any vacancy in the office
of any director or officer through death, resignation, removal,
disqualification, or other cause, and any additional directorship resulting from
increase in the number of directors, shall be filled at any time by a majority
of the directors then in office (even though less than a quorum remains) and the
person so chosen shall hold office until his or her successor shall have been
elected and qualified; or, if the person so chosen is a director elected to fill
a vacancy, such person shall hold office for the unexpired term of his or her
predecessor.
ARTICLE VI
CAPITAL STOCK
Section 6.1 Stock Certificates.
The certificates for shares of the capital stock of the Corporation shall
be in such form as shall be prescribed by law and approved, from time to time,
by the Board. Each certificate shall be signed by the Chairman of the Board, the
Chief Executive Officer or the President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Corporation. Any and
all signatures on any such certificates may be facsimiles. 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 issued, it may be issued by the Corporation
with the same effect as if such person were such officer transfer agent or
registrar at the date of issue.
Section 6.2 Transfer of Shares.
Upon compliance with provisions restricting the transfer or registration of
transfer of shares of capital stock, if any, shares of the capital stock of the
Corporation may be transferred on the books of the Corporation only by the
holder of such shares or by his or her duly authorized attorney, upon the
surrender to the Corporation or its transfer agent of the certificate
representing such stock properly endorsed and the payment of taxes due thereon.
Section 6.3 Fixing 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 may fix, in advance, a record date, which, unless otherwise provided
by law, 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.
Section 6.4 Lost Certificates.
The Board or any transfer agent of the Corporation may direct one or more
new certificate(s) representing stock of the Corporation 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 to be lost stolen, or
destroyed. When authorizing such issue of a new certificate or certificates, the
Board (or any transfer agent of the Corporation authorized to do so by a
resolution of the Board) 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 give the
Corporation a bond in such sum as the Board (or any transfer agent so
authorized) shall direct to indemnify the Corporation against any claim that may
be made against the Corporation with respect to the certificate alleged to have
been lost, stolen, or destroyed or the issuance of such new certificates, and
such requirement may be general or confined to specific instances.
Section 6.5 Regulations.
The Board shall have power and authority to make all such rules and
regulations as it may deem expedient concerning the issue, transfer,
registration, cancellation, and replacement of certificates representing stock
of the Corporation.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Corporate Seal.
There shall be no corporate seal.
Section 7.2 Fiscal Year.
The fiscal year of the Corporation shall be determined by resolution of the
Board.
Section 7.3 Notices and Waivers Thereof.
Except as otherwise provided by law, these Bylaws, or the Certificate of
Incorporation whenever by law or under the provisions of the Certificate of
Incorporation or these Bylaws notice is required to be given to any director or
stockholder, it will not be construed to require personal notice, but such
notice may be given: (a) in writing, by mail or courier service addressed to
such director or stockholder, at the address of such director or stockholder as
it appears on the records of the Corporation, with postage thereon prepaid; or
(b) by form of electronic transmission consented to by such director or
stockholder. Notice given by mail or courier service will be deemed to be given
at the time when the same is deposited in the United States mail. Notice given
pursuant to electronic transmission will be deemed given: (i) if by facsimile
telecommunication, when directed to a number at which the director or
stockholder has consented to receive notice; (ii) if by electronic mail, when
directed to an electronic mail address at which the director or stockholder has
consented to receive notice; (iii) if by a posting on an electronic network
together with separate notice to the director or stockholder of such specific
posting, upon the later of (A) such posting and (B) the giving of such separate
notice; and (iv) if by any other form of electronic transmission, when directed
to the director or stockholder. Notice to directors may also be given by
telephone or similar medium of communication or as otherwise may be permitted by
these Bylaws.
Whenever any notice is required to be given by 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 such notice, whether before or
after the time of the event for which notice is to be given, will be deemed
equivalent to such notice. Attendance of a person at a meeting will constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
Section 7.4 Stock of Other Corporations or Other Interests.
Unless otherwise ordered by the Board, the Chairman of the Board, the Chief
Executive Officer and the President, and such attorneys or agents of the
Corporation as may from time to time be authorized by the Board, the Chairman of
the Board, the Chief Executive Officer or the President, shall have full power
and authority on behalf of this Corporation to attend and to act and vote in
person or by proxy at any meeting of the holders of securities of any
corporation or other entity in which this Corporation may own or hold shares or
other securities, and at such meetings shall possess and may exercise all the
rights and powers incident to the ownership of such shares or other securities
which this Corporation, as the owner or holder thereof, might have possessed and
exercised if present. The Chairman of the Board, the Chief Executive Officer and
the President, or such authorized attorneys or agents, may also execute and
deliver on behalf of this Corporation powers of attorney, proxies, consents,
waivers, and other instruments relating to the shares or securities owned or
held by this Corporation.
ARTICLE VIII
AMENDMENTS
The Board shall have the power to adopt, amend, or repeal bylaws except as
otherwise provided by law or the Certificate of Incorporation.
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 12/19/06 | | | | | | | None on these Dates |
| | 10/13/05 | | 2 |
| | 5/11/04 | | 1 | | 2 |
| | 1/21/04 | | 1 |
| List all Filings |
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