AMENDED AND RESTATED
BY-LAWS
OF
VIRTUALDONORS.COM, INC.
AMENDED AND RESTATED
BY-LAWS
OF
VIRTUALDONORS.COM, INC.
ARTICLE I
STOCKHOLDERS
Section 1.1. Annual Meeting. An annual meeting of the stockholders of
VirtualDonors.com, Inc. (the “Corporation”), for the election
of directors and for the transaction of such other business as may properly
come before the meeting, shall be held at such place, on such date, and
at such time as the Board of Directors shall each year fix, which date
shall be within thirteen months subsequent to the later of the date of
incorporation or the last annual meeting of stockholders.
Section 1.2. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes prescribed in the notice of the meeting, may be
called by (1) the Board of Directors pursuant to a resolution adopted
by a majority of the total number of authorized directors (whether or
not there exist any vacancies in previously authorized directorships at
the time any such resolution is presented to the Board for adoption),
(2) the President or (3) the holders of shares entitled to cast not less
than twenty-five percent (25%) of the votes at the meeting, and shall
be held at such place, on such date, and at such time as they shall fix.
Business transacted at special meetings shall be confined to the purpose
or purposes stated in the notice.
Section 1.3. Notice of Meetings. Written notice of the place, date, and
time of all meetings of the stockholders shall be given not less than
ten (10) nor more than sixty (60) days before the date on which the meeting
is to be held, to each stockholder entitled to vote at such meeting, except
as otherwise provided herein or required by law (meaning, here and hereinafter,
as required from time to time by the Delaware General Corporation Law
or the Certificate of Incorporation of the Corporation).
When a meeting is adjourned to another place, date or time, written notice
need not be given of the adjourned meeting if the place, date and time
thereof are announced at the meeting at which the adjournment is taken;
provided, however, that if the date of any adjourned meeting is more than
thirty (30) days after the date for which the meeting was originally noticed,
or if a new record date is fixed for the adjourned meeting, written notice
of the place, date, and time of the adjourned meeting shall be given in
conformity herewith. At any adjourned meeting, any business may be transacted
which might have been transacted at the original meeting.
Section 1.4. Quorum. At any meeting of the stockholders, the holders of
a majority of all of the shares of the stock entitled to vote at the meeting,
present in person or by proxy, shall constitute a quorum for all purposes,
unless or except to the extent that the presence of a larger number may
be required by law or by the Certificate of Incorporation or By-Laws of
this Corporation.
If a quorum shall fail to attend any meeting, the chairman of the meeting
or the holders of a majority of the shares of stock entitled to vote who
are present, in person or by proxy, may adjourn the meeting to another
place, date, or time.
If a notice of any adjourned special meeting of stockholders is sent to
all stockholders entitled to vote thereat, stating that it will be held
with those present constituting a quorum, then except as otherwise required
by law, those present at such adjourned meeting shall constitute a quorum,
and all matters shall be determined by a majority of the votes cast at
such meeting.
Section 1.5. Organization. Such person as the Board of Directors may have
designated or, in the absence of such a person, the chief executive officer
of the Corporation or, in his absence, such person as may be chosen by
the holders of a majority of the shares entitled to vote who are present,
in person or by proxy, shall call to order any meeting of the stockholders
and act as chairman of the meeting. In the absence of the Secretary of
the Corporation, the secretary of the meeting shall be such person as
the chairman appoints.
Section 1.6. Conduct of Business. The chairman of any meeting of stockholders
shall determine the order of business and the procedure at the meeting,
including such regulation of the manner of voting and the conduct of discussion
as seem to him in order.
Section 1.7. Proxies and Voting. At any meeting of the stockholders, every
stockholder entitled to vote may vote in person or by proxy authorized
by an instrument in writing filed in accordance with the procedure established
for the meeting.
Each stockholder shall have one vote for every share of stock entitled
to vote which is registered in his name on the record date for the meeting,
except as otherwise provided herein or required by law.
All voting, except where otherwise required by law, may be by a voice
vote; provided, however, that upon demand therefor by a stockholder entitled
to vote or by his or her proxy, a stock vote shall be taken. Every stock
vote shall be taken by ballots, each of which shall state the name of
the stockholder or proxy voting and such other information as may be required
under the procedure established for the meeting. Every vote taken by ballots
shall be counted by an inspector or inspectors appointed by the chairman
of the meeting.
All elections shall be determined by a plurality of the votes cast, and
except as otherwise required by law or these By-Laws, all other matters
shall be determined by a majority of the votes cast.
Section 1.8. Stock List. A complete list of stockholders entitled to vote
at any meeting of stockholders, arranged in alphabetical order for each
class of stock and showing the address of each such stockholder and the
number of shares registered in his or her name, shall be open to the examination
of any such stockholder, for any purpose germane to the meeting, during
ordinary business hours for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting,
or if not so specified, at the place where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during the
whole time thereof and shall be open to the examination of any such stockholder
who is present. This list shall presumptively determine the identity of
the stockholders entitled to vote at the meeting and the number of shares
held by each of them.
Section 1.9. Stockholder Action by Written Consent. Any action which may
be taken at any annual or special meeting of stockholders may be taken
without a meeting and without prior notice, if a consent in writing, setting
forth the actions so taken, is signed by the holders of outstanding shares
having not less than the minimum number of votes which would be necessary
to authorize or take such action at a meeting at which all shares entitled
to vote thereon were present and voted. All such consents shall be filed
with the secretary of the Corporation and shall be maintained in the corporate
records. Prompt notice of the taking of a corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders
who have not consented in writing.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1. Number and Term of Office. The number of directors shall
initially be three, and, thereafter, shall be fixed from time to time
exclusively by the Board of Directors pursuant to a resolution adopted
by a majority of the total number of authorized directors (whether or
not there exist any vacancies in previously authorized directorships at
the time any such resolution is presented to the Board for adoption).
Each director shall hold office until his successor is elected and qualified
or until his earlier death, resignation, retirement, disqualification
or removal.
Section 2.2. Vacancies and Newly Created Directorships. Newly created
directorships resulting from any increase in the authorized number of
directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, or other cause (other then
removal from office by a vote of the stockholders) may be filled only
by a majority vote of the directors then in office, though less than a
quorum, and directors so chosen shall hold office for a term expiring
at the next annual meeting of stockholders. No decrease in the number
of directors constituting the Board of Directors shall shorten the term
of any incumbent director.
Section 2.3. Removal. Subject to the limitations stated in the Certificate
of Incorporation, any director, or the entire Board of Directors, may
be removed from office at any time, with or without cause, but only by
the affirmative vote of the holders of at least a majority of the voting
power of all of the then outstanding shares of stock of the Corporation
entitled to vote generally in the election of directors, voting together
as a single class. Vacancies in the Board of Directors resulting from
such removal may be filled by (i) a majority of the directors then in
office, though less than a quorum, or (ii) the stockholders at a special
meeting of the stockholders properly called for that purpose, by the vote
of the holders of a majority of the shares entitled to vote at such special
meeting. Directors so chosen shall hold office until the next annual meeting
of stockholders.
Section 2.4. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such place or places, on such date or dates, and at such
time or times as shall have been established by the Board of Directors
and publicized among all directors. A notice of each regular meeting shall
not be required.
Section 2.5. Special Meetings. Special meetings of the Board of Directors
may be called by a majority of the directors then in office by the chairman
of the board or by the chief executive officer and shall be held at such
place, on such date, and at such time as they or he shall fix. Notice
of the place, date, and time of each such special meeting shall be given
each director by whom it is not waived by mailing written notice not less
than five (5) days before the meeting (one (1) day before the meeting
if delivered by an overnight courier service and two (2) days before the
meeting if by overseas courier service) or by telephoning, telecopying,
telegraphing or personally delivering the same not less than twenty?four
(24) hours before the meeting. Unless otherwise indicated in the notice
thereof, any and all business may be transacted at a special meeting.
Section 2.6. Quorum. At any meeting of the Board of Directors, a majority
of the total number of authorized directors shall constitute a quorum
for all purposes. If a quorum shall fail to attend any meeting, a majority
of those present may adjourn the meeting to another place, date, or time,
without further notice or waiver thereof.
Section 2.7. Participation in Meetings by Conference Telephone. Members
of the Board of Directors, or of any committee of the Board of Directors,
may participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and such participation
shall constitute presence in person at such meeting.
Section 2.8. Conduct of Business. At any meeting of the Board of Directors,
business shall be transacted in such order and manner as the Board may
from time to time determine, and all matters shall be determined by the
vote of a majority of the directors present, except as otherwise provided
herein or required by law. Action may be taken by the Board of Directors
without a meeting if all members thereof consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings of the
Board of Directors.
Section 2.9. Powers. The Board of Directors may, except as otherwise required
by law, exercise all such powers and do all such acts and things as may
be exercised or done by the Corporation, including, without limiting the
generality of the foregoing, the unqualified power:
(1) To declare dividends from time to time in accordance with law;
(2) To purchase or otherwise acquire any property, rights or privileges
on such terms as it shall determine;
(3) To authorize the creation, making and issuance, in such form as
it may determine, of written obligations of every kind,
negotiable or non?negotiable, secured or unsecured, and to do all things
necessary in connection therewith;
(4) To remove any officer of the Corporation with or without cause,
and from time to time to pass on the powers and duties of any officer
upon any other person for the time being;
(5) To confer upon any officer of the Corporation the power to appoint,
remove and suspend subordinate officers, employees and agents;
(6) To adopt from time to time such stock option, stock purchase, bonus
or other compensation plans for directors, officers, employees and agents
of the Corporation and its subsidiaries as it may determine;
(7) To lend money to, or otherwise assist, its employees, officers and
directors if such loan or assistance may reasonably be expected to benefit,
directly or indirectly, the Corporation;
(8) To adopt from time to time such insurance, retirement, and other
benefit plans for directors, officers, employees and agents of the Corporation
and its subsidiaries as it may determine; and
(9) To adopt from time to time regulations, not inconsistent with
these By-Laws, for the management of the Corporation’s business
and affairs.
Section 2.10. Compensation of Directors. Directors, as such, may receive,
pursuant to resolution of the Board of Directors, fixed fees and other
compensation for their services as directors, including, without limitation,
their services as members of committees of the Board of Directors.
Section 2.11. Nomination of Director Candidates. Nominations for the election
of directors may be made by the Board of Directors or a proxy committee
appointed by the Board of Directors or by any stockholder entitled to
vote in the election of directors.
ARTICLE III
COMMITTEES
Section 3.1. Committees of the Board of Directors. The Board of Directors,
by a vote of a majority of the whole Board, may from time to time designate
committees of the Board, with such lawfully delegable powers and duties
as it thereby confers, to serve at the pleasure of the Board and shall,
for those committees and any others provided for herein, elect a director
or directors to serve as the member or members, designating, if it desires,
other directors as alternate members who may replace any absent or disqualified
member at any meeting of the committee. Any committee so designated may
exercise the power and authority of the Board of Directors to declare
a dividend, to authorize the issuance of stock or to adopt an agreement
of merger or consolidation if the resolution which designates the committee
or a supplemental resolution of the Board of Directors shall so provide.
In the absence or disqualification of any member of any committee and
any alternate member in his place, the member or members of the committee
present at the meeting and not disqualified from voting, whether or not
he or she or they constitute a quorum, may by unanimous vote appoint another
member of the Board of Directors to act at the meeting in the place of
the absent or disqualified member.
Section 3.2. Conduct of Business. Each committee may determine the procedural
rules for meeting and conducting its business and shall act in accordance
therewith, except as otherwise provided herein or required by law. Adequate
provision shall be made for notice to members of all meetings; one?third
of the authorized members shall constitute a quorum unless the committee
shall consist of one or two members, in which event one member shall constitute
a quorum; and all matters shall be determined by a majority vote of the
members present. Action may be taken by any committee without a meeting
if all members thereof consent thereto in writing, and the writing or
writings are filed with the minutes of the proceedings of such committee.
ARTICLE IV
OFFICERS
Section 4.1. Generally. The officers of the Corporation shall consist
of a President, a Chief Financial Officer and a Secretary. The Corporation
may also have, at the discretion of the Board, a Chairman of the Board,
a Vice Chairman of the Board, one or more Vice Presidents, and such other
officers as may from time to time be appointed by the Board of Directors.
Officers shall be elected by the Board of Directors, which shall consider
that subject at its first meeting after every annual meeting of stockholders.
Each officer shall hold office until his or her successor is elected and
qualified or until his or her earlier resignation or removal. Any number
of offices may be held by the same person.
Section 4.2. Chairman of the Board. The Chairman of the Board, if there
shall be such an officer, shall, if present, preside at all meetings of
the Board of Directors, and exercise and perform such other powers and
duties as may be from time to time assigned to him by the Board of Directors
or as provided by these By-Laws.
Section 4.3. Vice Chairman of the Board. The Vice Chairman of the Board,
if there shall be such an officer, shall in the absence of the Chairman
of the Board, preside at all meetings of the Board of Directors, and shall
exercise and perform such other powers and duties as may be from time
to time assigned to him by the Board of Directors or as provided by these
By-Laws.
Section 4.4. President. Subject to such supervisory powers, if any, as
may be given by the Board of Directors to the Chairman of the Board, if
there be such an officer, the President shall be the general manager and
chief executive officer of the Corporation and shall, subject to the control
of the Board of Directors, have general supervision, direction, and control
of the business and officers of the Corporation. He shall preside at all
meetings of the stockholders. He shall have the general powers and duties
of management usually vested in the office of president of a Corporation,
and shall have such other powers and duties as may be prescribed by the
Board of Directors or by these By-Laws.
Section 4.5. Vice President. In the absence or disability of the President,
the Vice Presidents in order of their rank as fixed by the Board of Directors,
or if not ranked, the Vice President designated by the Board of Director,
shall perform the duties of the President, and when so acting shall have
all the powers of, and be subject to all the restrictions upon, the President.
The Vice Presidents shall have such other powers and perform such other
duties as from time to time may be prescribed for them respectively by
the Board of Directors or these By-Laws.
Section 4.6. Chief Financial Officer. The Chief Financial Officer shall
keep and maintain or cause to be kept and maintained, adequate and correct
books and records of account in written form or any other form capable
of being converted into written form.
The Chief Financial Officer shall deposit all monies and other valuables
in the name and to the credit of the Corporation with such depositaries
as may be designated by the Board of Directors. He shall disburse all
funds of the Corporation as may be ordered by the Board of Directors,
shall render to the President and directors, whenever they request it,
an account of all of his transactions as Chief Financial Officer and of
the financial condition of the Corporation, and shall have such other
powers and perform such other duties as may be prescribed by the Board
of Directors or by these By-Laws.
Section 4.7. Secretary. The Secretary shall keep, or cause to be kept,
a book of minutes in written form of the proceedings of the Board of Directors,
committees of the Board, and stockholders. Such minutes shall include
all waivers of notice, consents to the holding of meetings, or approvals
of the minutes of meetings executed pursuant to these By-Laws or the Delaware
General Corporation Law. The Secretary shall keep, or cause to be kept
at the principal executive office or at the office of the Corporation’s
transfer agent or registrar, a record of its stockholders, giving the
names and addresses of all stockholders and the number and class of shares
held by each.
The Secretary shall give or cause to be given, notice of all meetings
of the stockholders and of the Board of Directors required by these By-Laws
or by law to be given, and shall keep the seal of the Corporation in safe
custody, and shall have such other powers and perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
Section 4.8. Delegation of Authority. The Board of Directors may from
time to time delegate the powers or duties of any officer to any other
officers or agents, notwithstanding any provision hereof.
Section 4.9. Removal. Any officer of the Corporation may be removed at
any time, with or without cause, by the Board of Directors.
Section 4.10. Action With Respect to Securities of Other Corporations.
Unless otherwise directed by the Board of Directors, the President or
any officer of the Corporation authorized by the President shall have
power to vote and otherwise act on behalf of the Corporation, in person
or by proxy, at any meeting of stockholders of or with respect to any
action of stockholders of any other corporation in which this Corporation
may hold securities and otherwise to exercise any and all rights and powers
which this Corporation may possess by reason of its ownership of securities
in such other corporation.
ARTICLE V
STOCK
Section 5.1. Certificates of Stock. Each stockholder shall be entitled
to a certificate signed by, or in the name of the Corporation by, the
President or a Vice President, and by the Secretary or an Assistant Secretary,
or the Chief Financial Officer, certifying the number of shares owned
by him or her. Any of or all the signatures on the certificate may be
facsimile.
Section 5.2. Transfers of Stock. Transfers of stock shall be made only
upon the transfer books of the Corporation kept at an office of the Corporation
or by transfer agents designated to transfer shares of the stock of the
Corporation. Except where a certificate is issued in accordance with Section
5.4 of these By-Laws, an outstanding certificate for the number of shares
involved shall be surrendered for cancellation before a new certificate
is issued therefor.
Section 5.3. Record Date. The Board of Directors may fix a record date,
which shall not be more than sixty (60) nor fewer than ten (10) days before
the date of any meeting of stockholders, nor more than sixty (60) days
prior to the time for the other action hereinafter described, as of which
there shall be determined the stockholders who are entitled: to notice
of or to vote at any meeting of stockholders or any adjournment thereof;
to receive payment of any dividend or other distribution or allotment
of any rights; or to exercise any rights with respect to any change, conversion
or exchange of stock or with respect to any other lawful action.
Section 5.4. Lost, Stolen or Destroyed Certificates. In the event of the
loss, theft or destruction of any certificate of stock, another may be
issued in its place pursuant to such regulations as the Board of Directors
may establish concerning proof of such loss, theft or destruction and
concerning the giving of a satisfactory bond or bonds of indemnity.
Section 5.5. Regulations. The issue, transfer, conversion and registration
of certificates of stock shall be governed by such other regulations as
the Board of Directors may establish.
ARTICLE VI
NOTICES
Section 6.1. Notices. Except as otherwise specifically provided herein
or required by law, all notices required to be given to any stockholder,
director, officer, employee or agent shall be in writing and may in every
instance be effectively given by hand delivery to the recipient thereof,
by depositing such notice in the mails, postage paid, or by sending such
notice by prepaid telegram, mailgram, telecopy or commercial courier service.
Any such notice shall be addressed to such stockholder, director, officer,
employee or agent at his or her last known address as the same appears
on the books of the Corporation. The time when such notice shall be deemed
to be given shall be the time such notice is received by such stockholder,
director, officer, employee or agent, or by any person accepting such
notice on behalf of such person, if hand delivered, or the time such notice
is dispatched, if delivered through the mails or by telegram, courier
or mailgram.
Section 6.2. Waivers. A written waiver of any notice, signed by a stockholder,
director, officer, employee or agent, whether before or after the time
of the event for which notice is to be given, shall be deemed equivalent
to the notice required to be given to such stockholder, director, officer,
employee or agent. Neither the business nor the purpose of any meeting
need be specified in such a waiver. Attendance of a person at a meeting
shall constitute a waiver of notice for 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.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Facsimile Signatures. In addition to the provisions for use
of facsimile signatures elsewhere specifically authorized in these By-Laws,
facsimile signatures of any officer or officers of the Corporation may
be used whenever and as authorized by the Board of Directors or a committee
thereof.
Section 7.2. Corporate Seal. The Board of Directors may provide a suitable
seal, containing the name of the Corporation, which seal shall be in the
charge of the Secretary. If and when so directed by the Board of Directors
or a committee thereof, duplicates of the seal may be kept and used by
the Chief Financial Officer or by an Assistant Secretary or other officer
designated by the Board of Directors.
Section 7.3. Reliance Upon Books, Reports and Records. Each director,
each member of any committee designated by the Board of Directors, and
each officer of the Corporation shall, in the performance of his duties,
be fully protected in relying in good faith upon the books of account
or other records of the Corporation, including reports made to the Corporation
by any of its officers, by an independent certified public accountant,
or by an appraiser.
Section 7.4. Fiscal Year. The fiscal year of the Corporation shall be
as fixed by the Board of Directors.
Section 7.5. Time Periods. In applying any provision of these By-Laws
which require that an act be done or not done a specified number of days
prior to an event or that an act be done during a period of a specified
number of days prior to an event, calendar days shall be used, the day
of the doing of the act shall be excluded, and the day of the event shall
be included.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 8.1. Right to Indemnification. Each person who was or is made
a party or is threatened to be made a party to or is involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative
(“proceeding”), by reason of the fact that he or she or a
person of whom he or she is the legal representative, is or was a director,
officer or employee of the Corporation or is or was serving at the request
of the Corporation as a director, officer or employee of another corporation,
or of a partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity as a director, officer
or employee or in any other capacity while serving as a director, officer
or employee, shall be indemnified and held harmless by the Corporation
to the fullest extent authorized by the Delaware General Corporation Law,
as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than said Law permitted the
Corporation to provide prior to such amendment) against all expenses,
liability and loss (including attorneys’ fees, judgments, fines,
ERISA excise taxes or penalties, amounts paid or to be paid in settlement
and amounts expended in seeking indemnification granted to such person
under applicable law, this Bylaw or any agreement with the Corporation)
reasonably incurred or suffered by such person in connection therewith
and such indemnification shall continue as to a person who has ceased
to be a director, officer or employee and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that,
except as provided in Section 8.2, the Corporation shall indemnify any
such person seeking indemnity in connection with an action, suit or proceeding
(or part thereof) initiated by such person only if (a) such indemnification
is expressly required to be made by law, (b) the action, suit or proceeding
(or part thereof) was authorized by the Board of Directors of the Corporation,
(c) such indemnification is provided by the Corporation, in its sole discretion,
pursuant to the powers vested in the Corporation under the Delaware General
Corporation Law, or (d) the action, suit or proceeding (or part thereof)
is brought to establish or enforce a right to indemnification under an
indemnity agreement or any other statute or law or otherwise as required
under Section 145 of the Delaware General Corporation Law. Such right
shall be a contract right and shall include the right to be paid by the
Corporation expenses incurred in defending any such proceeding in advance
of its final disposition; provided, however, that, if the Delaware General
Corporation Law then so requires, the payment of such expenses incurred
by a director or officer of the Corporation in his or her capacity as
a director or officer (and not in any other capacity in which service
was or is rendered by such person while a director or officer, including,
without limitation, service to an employee benefit plan) in advance of
the final disposition of such proceeding, shall be made only upon delivery
to the Corporation of an undertaking, by or on behalf of such director
or officer, to repay all amounts so advanced if it should be determined
ultimately that such director or officer is not entitled to be indemnified
under this Section or otherwise.
Section 8.2. Right of Claimant to Bring Suit. If a claim under Section
8.1 is not paid in full by the Corporation within ninety (90) days after
a written claim has been received by the Corporation, the claimant may
at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if such suit is not frivolous or brought
in bad faith, the claimant shall be entitled to be paid also the expense
of prosecuting such claim. It shall be a defense to any such action (other
than an action brought to enforce a claim for expenses incurred in defending
any proceeding in advance of its final disposition where the required
undertaking, if any, has been tendered to this Corporation) that the claimant
has not met the standards of conduct which make it permissible under the
Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense
shall be on the Corporation. Neither the failure of the Corporation (including
its Board of Directors, independent legal counsel, or its stockholders)
to have made a determination prior to the commencement of such action
that indemnification of the claimant is proper in the circumstances because
he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its stockholders)
that the claimant has not met such applicable standard of conduct, shall
be a defense to the action or create a presumption that a claimant has
not met such applicable standard of conduct.
Section 8.3. Non?Exclusivity of Rights. The rights conferred on any person
by Sections 8.1 and 8.2 shall not be exclusive of any other right which
such persons may have or hereafter acquire under any statute, provision
of the Certificate of Incorporation, bylaw, agreement, vote of stockholders
or disinterested directors or otherwise.
Section 8.4. Indemnification Contracts. The Board of Directors is authorized
to enter into a contract with any director, officer, employee or agent
of the Corporation, or any person serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, including employee benefit plans,
providing for indemnification rights equivalent to or, if the Board of
Directors so determines, greater than, those provided for in this Article
VIII.
Section 8.5. Insurance. The Corporation may maintain insurance to the
extent reasonably available, at its expense, to protect itself and any
such director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against
any such expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability
or loss under Delaware General Corporation Law.
Section 8.6. Effect of Amendment. Any amendment, repeal or modification
of any provision of this Article VIII by the stockholders or the directors
of the Corporation shall not adversely affect any right or protection
of a director or officer of the Corporation existing at the time of such
amendment, repeal or modification.
ARTICLE IX
AMENDMENTS
The Board of Directors is expressly empowered to adopt, amend or repeal
By-Laws of the Corporation, subject to the right of the stockholders to
adopt, amend, alter or repeal the By-Laws of the Corporation. Any adoption,
amendment or repeal of By-Laws of the Corporation by the Board of Directors
shall require the approval of a majority of the total number of authorized
directors (whether or not there exist any vacancies in previously authorized
directorships at the time any resolution providing for adoption, amendment
or repeal is presented to the Board). The stockholders shall also have
power to adopt, amend or repeal the By-Laws of the Corporation.
SECRETARY’S CERTIFICATE OF ADOPTION OF
AMENDED AND RESTATED BY-LAWS OF
I hereby certify:
That I am the duly elected Secretary of VirtualDonors.com, Inc., a Delaware
corporation;
That the foregoing Amended and Restated By-Laws comprising eleven (11)
pages, constitute the Amended and Restated By-Laws of said corporation
as duly adopted by the Board of Directors of the Corporation on July ___,
2000.
IN WITNESS WHEREOF, I have hereunder subscribed my name this ____ day
of July, 2000.
____________________
Allen B. Gruber, Secretary
ARTICLE I STOCKHOLDERS 1
1.1. Annual Meeting 1
1.2. Special Meetings 1
1.3. Notice of Meetings 1
1.4. Quorum 1
1.5. Organization 2
1.6. Conduct of Business 2
1.7. Proxies and Voting 2
1.8. Stock List 2
1.9. Stockholder Action by Written Consent 3
ARTICLE II BOARD OF DIRECTORS 3
2.1. Number and Term of Office 3
2.2. Vacancies and Newly Created Directorships 3
2.3. Removal 3
2.4. Regular Meetings 4
2.5. Special Meetings 4
2.6. Quorum 4
2.7. Participation in Meetings by Conference Telephone 4
2.8. Conduct of Business 4
2.9. Powers 4
2.10. Compensation of Directors 5
2.11. Nomination of Director Candidates 5
ARTICLE III COMMITTEES 5
3.1. Committees of the Board of Directors 5
3.2. Conduct of Business 6
ARTICLE IV OFFICERS 6
4.1. Generally 6
4.2. Chairman of the Board 6
4.3 Vice Chairman of the Board 6
4.4. President 7
4.5. Vice President 7
4.6. Chief Financial Officer 7
4.7. Secretary 7
4.8. Delegation of Authority 7
4.9. Removal 7
4.10. Action With Respect to Securities of Other Corporations 7
ARTICLE V STOCK 8
5.1. Certificates of Stock 8
5.2. Transfers of Stock 8
5.3. Record Date 8
5.4. Lost, Stolen or Destroyed Certificates 8
5.5. Regulations 8
ARTICLE VI NOTICES 8
6.1. Notices 8
6.2. Waivers 9
ARTICLE VI MISCELLANEOUS 9
7.1. Facsimile Signatures 9
7.2. Corporate Seal 9
7.3. Reliance Upon Books, Reports and Records 9
7.4. Fiscal Year 9
7.5. Time Periods 9
ARTICLE VIII INDEMNIFICATION OF DIRECTORS AND OFFICERS 9
8.1. Right to Indemnification 9
8.2. Right of Claimant to Bring Suit 10
8.3. Non?Exclusivity of Rights 11
8.4. Indemnification Contracts 11
8.5. Insurance 11
8.6. Effect of Amendment 11
ARTICLE IX AMENDMENTS 11
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