Attached files
| file | filename |
|---|---|
| 8-K - NEOMEDIA TECHNOLOGIES INC | v206021_8k.htm |
| EX-10.7 - NEOMEDIA TECHNOLOGIES INC | v206021_ex10-7.htm |
| EX-10.1 - NEOMEDIA TECHNOLOGIES INC | v206021_ex10-1.htm |
| EX-10.3 - NEOMEDIA TECHNOLOGIES INC | v206021_ex10-3.htm |
| EX-10.2 - NEOMEDIA TECHNOLOGIES INC | v206021_ex10-2.htm |
| EX-10.6 - NEOMEDIA TECHNOLOGIES INC | v206021_ex10-6.htm |
Exhibit
99.1
NEOMEDIA
TECHNOLOGIES, INC.
BY-LAWS
ADOPTED
December 16,
2010
TABLE OF
CONTENTS
|
MEETINGS OF STOCKHOLDERS
|
1
|
|
Section 1.1. Place of
Meetings.
|
1
|
|
Section 1.2. Annual
Meetings.
|
1
|
|
Section 1.3. Special
Meetings.
|
1
|
|
Section 1.4. Notice of
Meetings.
|
1
|
|
Section 1.5. Record Date.
|
1
|
|
Section 1.6. Informal
Action.
|
1
|
|
DIRECTORS
|
2
|
|
Section 2.1. Powers of
Directors.
|
2
|
|
Section 2.2. Number, Election and Term of
Office.
|
2
|
|
Section 2.3. Vacancies.
|
2
|
|
Section 2.4. Meetings of
Directors.
|
2
|
|
Section 2.5. Informal
Action.
|
3
|
|
Section 2.6. Telephone Participation in
Meetings.
|
3
|
|
OFFICERS
|
3
|
|
Section 3.1. Enumeration.
|
3
|
|
Section 3.2. CEO.
|
3
|
|
Section 3.3. Vice
President.
|
3
|
|
Section 3.4. Secretary.
|
4
|
|
Section 3.5. Treasurer.
|
4
|
|
Section 3.6. Other Officers and Assistant
Officers. The
|
4
|
|
Section 3.7. Term and
Compensation.
|
4
|
|
COMMITTEES
|
4
|
|
Section 4.1. Executive
Committee.
|
5
|
|
Section 4.2. Delegation of Authority to Executive
Committee.
|
5
|
|
Section 4.3 Committees.
|
5
|
|
Section 4.4 Current
Committees.
|
5
|
|
Section 4.5 Committee
Recommendations.
|
5
|
|
INDEMNIFICATION
|
5
|
|
Section 5.1. Directors and
Officers.
|
5
|
|
Section 5.2. Payment of
Expenses.
|
6
|
|
Section 5.3. Permissive Indemnification and
Advancement of Expenses.
|
6
|
|
Section 5.4. Basis of Rights; Other
Rights.
|
6
|
|
Section 5.5 Determination of
Indemnification.
|
6
|
|
Section 5.6 Insurance.
|
7
|
|
Section 5.7 Powers of the
Board.
|
7
|
|
Section 5.8 Definition -
Corporation.
|
7
|
|
Section 5.9 Definition - Authorized
Representative.
|
7
|
|
|
|
|
SHARES OF CAPITAL STOCK
|
8
|
|
Section 6.1. Issuance of
Stock.
|
8
|
|
Section 6.2. Stock
Certificates.
|
8
|
|
Section 6.3. Transfer of
Stock.
|
8
|
|
Section 6.4. Lost, Stolen, Destroyed, or Mutilated
Certificates.
|
8
|
|
Section 6.5. Regulations.
|
8
|
|
Section 6.6. Holders of
Record.
|
8
|
|
Section 6.7. Restriction on
Transfer.
|
9
|
|
GENERAL PROVISIONS
|
9
|
|
Section 7.1. Corporate
Seal.
|
9
|
|
Section 7.2. Fiscal Year.
|
9
|
|
Section 7.3. Authorization.
|
9
|
|
Section 7.4. Financial
Reports.
|
9
|
|
Section 7.5. Effect of
By-laws.
|
9
|
|
AMENDMENTS
|
9
|
BY-LAWS
OF
NEOMEDIA
TECHNOLOGIES, INC.
MEETINGS
OF STOCKHOLDERS
Section 1.1. Place of
Meetings. Meetings of the stockholders shall be held at such place
within or without the State of Delaware as shall be designated by the Board of
Directors or the person or persons calling the meeting.
Section 1.2. Annual
Meetings. An annual meeting of the stockholders for the election of
directors and the transaction of such other business as may properly come before
the meeting may be held after the close of the Corporation's fiscal year on such
date and at such time as shall be designated by the Board of
Directors.
Section 1.3. Special
Meetings. Special meetings may be called at any time by the CEO or
the Board of Directors.
Section 1.4. Notice of
Meetings. A written notice stating the place, date, and hour of each
meeting and, in the case of a special meeting, the purpose or purposes for which
the meeting is called shall be given by, or at the direction of, the Secretary
or the person or persons authorized to call the meeting to each stockholder of
record entitled to vote at such meeting, not less than ten (10) days nor more
than sixty (60) days before the date of the meeting, unless a greater period of
time is required by law in a particular case.
Section 1.5. Record
Date. In order to 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, the Board of Directors
may fix, in advance, a record date, which shall not be more than sixty (60) nor
less than ten (10) days before the date of such meeting, nor more than sixty
(60) days prior to any other action. If no record date is
fixed: (i) the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held; and (ii) the record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting,
when no prior action by the Board of Directors is necessary, shall be the day on
which the first written consent is expressed. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 1.6. Informal
Action. Any action required to be taken at any annual or special
meeting of stockholders of the Corporation, or any action which may be taken at
any annual or special meeting of the stockholders, 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 holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in
writing.
Page
1
DIRECTORS
Section 2.1. Powers of
Directors. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors, which shall
exercise all powers that may be exercised or performed by the Corporation and
that are not by statute, the Certificate of Incorporation or these By-laws
directed to be exercised or performed by the stockholders.
Section 2.2. Number,
Election and Term of Office. The Board of Directors shall consist of
not less than one (1) member as fixed from time to time by the Board of
Directors. The directors shall be elected by the
stockholders at the annual meeting or any special meeting called for such
purpose. Each director shall hold office until his or her successor
shall be duly elected and qualified or until his or her earlier resignation or
removal. A director may resign at any time upon written notice to the
Corporation.
Section
2.3. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority vote of the directors then in office, although less than a quorum,
or by a sole remaining director. The occurrence of a vacancy which is
not filled by action of the Board of Directors shall constitute a determination
by the Board of Directors that the number of directors is reduced so as to
eliminate such vacancy, unless the Board of Directors shall specify
otherwise. When one or more directors shall resign from the Board,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective.
Section 2.4. Meetings of
Directors. Regular meetings of the Board of Directors shall be held
at such time and place as the Board of Directors shall from time to time by
resolution appoint; and no notice shall be required to be given of any such
regular meeting. A special meeting of the Board of Directors may be
called by the Chairperson of the Board or any director by giving two
(2) days' notice to each director by letter, email, telegram, telephone or other
oral message, the receipt of which is confirmed by the respective
director. Except as otherwise provided by these By-laws, a majority
of the total number of directors shall constitute a quorum for the transaction
of business, and the vote of a majority of the directors present at any meeting
at which a quorum is present shall be the act of the Board of
Directors.
Page
2
Section 2.5. Informal
Action. Any action required or permitted to be taken at any meeting
of the Board of Directors, or of any committee thereof, may be taken without a
meeting if all members of the Board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 2.6. Telephone
Participation in Meetings. Members of the Board of Directors, or any
committee designated by the Board, may participate in a meeting of the Board of
Directors or such 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 participation in a meeting pursuant to this
Section shall constitute presence in person at such meeting.
OFFICERS
Section
3.1. Enumeration. The officers of the Corporation shall be
elected by the Board of Directors and shall consist of a CEO, such number of
Vice CEOs (if any) as the Board of Directors shall from time to time elect, a
Secretary, a Treasurer, and such other officers (if any) as the Board of
Directors shall from time to time elect. The Board of Directors may
at any time elect one of its members as Chairperson of the Board of the
Corporation, who shall preside at meetings of the Board of Directors and of the
stockholders and shall have such powers and perform such duties as shall from
time to time be prescribed by the Board of Directors. Any two or more
offices may be held by the same person. While the Board of Directors
may approve from time to time various executive appointments, not all of those
are designated officers of the company. The Board of Directors may
also at its sole discretion designate an existing employee as an officer of the
company.
Section
3.2. CEO. The CEO shall be the chief executive officer of
the Corporation, and shall have general and active charge and control over the
business and affairs of the Corporation, subject to the Board of
Directors. If there shall be no Chairperson of the Board, or in his
or her absence or inability to act, the CEO shall preside at meetings of the
Board of Directors and of the stockholders. The CEO shall sign all
certificates for shares of the capital stock of the Corporation and may execute
on behalf of the Corporation any contract which has been approved by the Board
of Directors.
Section 3.3. Vice
President. The Vice President or, if there shall be more than one,
the Vice President, in the order of their seniority unless otherwise specified
by the Board of Directors, shall have all of the powers and perform all of the
duties of the CEO during the absence or inability to act of the
CEO. Each Vice President shall also have such other powers and
perform such other duties as shall from time to time be prescribed by the Board
of Directors or the CEO.
Page
3
Section
3.4. Secretary. The Secretary shall record the proceedings
of the meetings of the stockholders and directors in a book to be kept for that
purpose, and shall give notice as required by statute or these By-laws of all
such meetings. The Secretary shall have custody of the seal of the
Corporation and of all books, records, and papers of the Corporation, except
such as shall be in the charge of the Treasurer or of some other person
authorized to have custody and possession thereof by resolution of the Board of
Directors. The Secretary may, execute on behalf of the Corporation
any contract which has been approved by the Board of Directors. The
Secretary shall also have such other powers and perform such other duties,
including signing stock certificates, as are incident to the office of the
secretary of a corporation or as shall from time to time be prescribed by, or
pursuant to authority delegated by, the Board of Directors.
Section
3.5. Treasurer. The Treasurer shall keep full and accurate
accounts of the receipts and disbursements of the Corporation in books belonging
to the Corporation, shall deposit all moneys and other valuable effects of the
Corporation in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors, and shall also have
such other powers and perform such other duties, including signing stock
certificates, as are incident to the office of the treasurer of a corporation or
as shall from time to time be prescribed by, or pursuant to authority delegated
by, the Board of Directors. If the Board of Director has not elected
a Treasurer such duties may be fulfilled by another designated officer, i.e. the
Chief Financial Officer (“CFO”), or another executive designated by the Board of
Directors.
Section 3.6. Other Officers
and Assistant Officers. The powers and duties of each other officer
or assistant officer who may from time to time be chosen by the Board of
Directors shall be as specified by, or pursuant to authority delegated by, the
Board of Directors at the time of the appointment of such other officer or
assistant officer or from time to time thereafter. In addition, each
officer designated as an assistant officer shall assist in the performance of
the duties of the officer to which he or she is assistant, and shall have the
powers and perform the duties of such officer during the absence or inability to
act of such officer.
Section 3.7. Term and
Compensation. Officers shall be elected by the Board of Directors
from time to time, to serve at the pleasure of the Board. Each
officer shall hold office until his or her successor is elected and qualified,
or until his or her earlier resignation or removal. The compensation
of all officers shall be fixed by, or pursuant to authority delegated by, the
Board of Directors from time to time.
COMMITTEES
Page
4
Section 4.1. Executive
Committee. The
Executive Committee shall consist of the Chairperson and up to two (2)
Directors.
The
nominations for the one (1) elected Executive Committee member will be solicited
from the Board. Directors may self nominate or be nominated for the
Executive Committee.
Once
nominations are closed, the Board will vote on Executive Committee
members. Each Director shall be entitled to one (1) vote for the
vacant Executive Committee position. No cumulative voting shall be
permitted.
If a
single candidate chooses to stand for the role and there are no other candidates
for that Executive Committee position, they will automatically assume that role
with no vote required.
Section 4.2. Delegation of
Authority to Executive Committee.
The Board shall, in its sole discretion and subject to its oversight and
ratification, delegate such authority to the Executive Committee to permit the
Executive Committee to conduct meetings and exercise its authority in the
management of the routine business affairs of the Company, during the periods
between meetings of a Board. A majority of the current membership of
the Executive Committee shall constitute a quorum thereof, and the acts of a
majority of a quorum of the Executive Committee shall constitute the official
acts of the Executive Committee. Minutes of Executive Committee meetings
shall be prepared, a copy of which shall be supplied to each Director on
request.
Section 4.3
Committees. Committees may be established upon recommendation of a
Director with approval of the Board. Committees and committee
leadership shall be constituted and administered as determined by a quorum of
the Board of Directors.
Section 4.4 Current
Committees. Current committees within the Company Board
include: Audit, Stock Option, Compensation and Governance
Committees.
Section 4.5 Committee
Recommendations. All committee recommendations must be presented to
the Board of Directors for approval, by the recommending Director.
INDEMNIFICATION
Section 5.1. Directors and
Officers. The Corporation shall indemnify, to the fullest extent now
or hereafter permitted by law, each director and/or officer (including each
former director and/or officer) of the Corporation who was or is made a party to
or witness in or is threatened to be made a party to or a witness in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was an authorized representative of the Corporation, against all expenses
(including attorneys' fees and disbursements), judgments, fines (including
excise taxes and penalties) and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding.
Page
5
Section 5.2. Payment of
Expenses. The Corporation shall pay expenses (including attorneys'
fees and disbursements) incurred by a director or officer of the Corporation
referred to in Section 4.1 hereof in defending or appearing as a witness in any
civil or criminal action, suit or proceeding described in Section 4.1 hereof in
advance of the final disposition of such action, suit or
proceeding. The expenses incurred by such director or officer in his
capacity as a director or officer of the Corporation shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding only upon receipt of an undertaking by or on behalf of such director
or officer to repay all amounts in advance if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation because he has not
met the standard or conduct set further in the first sentence of Section 4.5
hereof.
Section 5.3. Permissive
Indemnification and Advancement of Expenses. The Corporation may, as
determined by the Board of Directors from time to time, indemnify to the fullest
extent now or hereafter permitted by law, any person who was or is a party to or
a witness in or is threatened to be made a party to or a witness in, or is
otherwise involved in, any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was an authorized representative of the Corporation,
against all expenses (including attorneys' fees and disbursements), judgments,
fines (including excise taxes and penalties), and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding. Subject to Section 4.2 hereof, the Corporation may, as
determined by the Board of Directors from time to time, pay expenses incurred by
any such person by reason of his participation in an action, suit or proceeding
referred to in this Section 4.3 in advance of the final disposition of such
action, suit or proceeding.
Section 5.4. Basis of
Rights; Other Rights. Each director and officer of the Corporation
shall be deemed to act in such capacity in reliance upon such rights of
indemnification and advancement of expenses as are provided in this
Article. The rights of indemnification and advancement of expenses
provided by this Article shall not be deemed exclusive of any other rights to
which any person seeking indemnification or advancement of expenses may be
entitled under any agreement, vote of stockholders or disinterested directors,
statute or otherwise, both as to action in such person's official capacity and
as to action in another capacity while holding such office or position, and
shall continue as to a person who has ceased to be an authorized representative
of the Corporation and shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 5.5 Determination of
Indemnification. Any indemnification under this Article shall be made
by the Corporation only as authorized in the specific case upon a determination
that indemnification of the authorized representative is proper in the
circumstances because such person has acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Such
determination shall be made (1) by the Board of Directors by a majority vote of
a quorum consisting of Directors who were not parties to such action, suit or
proceeding, or (2) quorum of disinterested Directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, or
itself, create a presumption that the person did not act in good faith and in a
manner which such person reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that such person's conduct was
unlawful.
Page
6
Section
5.6 Insurance. The Corporation shall purchase and maintain
insurance on behalf of each director and officer against any liability asserted
against or incurred by such director or officer in any capacity, or arising out
of such director's or officer's status as such, whether or not the Corporation
would have the power to indemnify such director or officer against such
liability under the provisions of this Article. The Corporation shall
not be required to maintain such insurance if it is not available on terms
satisfactory to the Board of Directors or if, in the business judgment of the
Board of Directors, either (i) the premium cost for such insurance is
substantially disproportionate to the amount of coverage, or (ii) the coverage
provided by such insurance is so limited by exclusions that there is
insufficient benefit from such insurance. The Corporation may
purchase and maintain insurance on behalf of any person referred to in Section
4.3 hereof against any liability asserted against or incurred by such person in
any capacity, whether or not the Corporation would have the power to indemnify
such persons against such liability under the provisions of this
Article.
Section 5.7 Powers of the
Board. The Board of Directors, without approval of the stockholders,
shall have the power to borrow money on behalf of the Corporation, including the
power to pledge the assets of the Corporation, from time to time to discharge
the Corporation's obligations with respect to indemnification, the advancement
and reimbursement of expenses, and the purchase and maintenance of insurance
referred to in this Article IV.
Section 5.8 Definition -
Corporation. For purposes of this Article, references to "the
Corporation" shall include, in addition to the resulting corporation, and
constituent corporation (including any constituent of a constituent) absorbed in
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its authorized representatives so that
any person who is or was an authorized representative of such constituent
corporation shall stand in the same position under this Article with respect to
the resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
Section 5.9 Definition -
Authorized Representative. For the purposes of this Article, the term
"authorized representative" shall mean a director, officer, employee or agent of
the Corporation or of any subsidiary of the Corporation, or a trustee,
custodian, administrator, committeeman or fiduciary of any employee benefit plan
established and maintained by the Corporation or by any subsidiary of the
Corporation, or a person serving another corporation, partnership, joint
venture, trust or other enterprise in any of the foregoing capacities at the
request of the Corporation.
Page
7
SHARES
OF CAPITAL STOCK
Section 6.1. Issuance of
Stock. Shares of capital stock of any class now or hereafter
authorized, securities convertible into or exchangeable for such stock, or
options or other rights to purchase such stock or securities may be issued or
granted in accordance with authority granted by resolution of the Board of
Directors.
Section 6.2. Stock
Certificates. Certificates for shares of the capital stock of the
Corporation shall be in the form adopted by the Board of Directors, shall be
signed by the CEO and by the Secretary or Treasurer, and may be sealed with the
seal of the Corporation. All such certificates shall be numbered
consecutively, and the name of the person owning the shares represented thereby,
with the number of such shares and the date of issue, shall be entered on the
books of the Corporation.
Section 6.3. Transfer of
Stock. Shares of capital stock of the Corporation shall be
transferred only on the books of the Corporation, by the holder of record in
person or by the holder's duly authorized transfer agent, upon surrender to the
Corporation of the certificate for such shares duly endorsed for transfer,
together with such other documents (if any) as may be required to effect such
transfer.
Section 6.4. Lost, Stolen,
Destroyed, or Mutilated Certificates. New stock certificates may be
issued to replace certificates alleged to have been lost, stolen, destroyed, or
mutilated, upon such terms and conditions, including proof of loss or
destruction, and the giving of a satisfactory bond of indemnity, as the Board of
Directors from time to time may determine.
Section
6.5. Regulations. The Board of Directors shall have power
and authority to make all such rules and regulations not inconsistent with these
By-laws as it may deem expedient concerning the issue, transfer, and
registration of shares of capital stock of the Corporation.
Section 6.6. Holders of
Record. The Corporation shall be entitled to treat the holder of
record of any share or shares of capital stock of the Corporation as the holder
and owner in fact thereof for all purposes and shall not be bound to recognize
any equitable or other claim to, or right, title, or interest in, such share or
shares on the part of any other person, whether or not the Corporation shall
have express or other notice thereof, except as otherwise provided by the laws
of the State of Delaware.
Page
8
Section 6.7. Restriction on
Transfer. A restriction on the hypothecation, transfer or
registration of transfer of shares of the corporation may be imposed either by
these By-laws or by an agreement among any number of stockholders or such
holders and the corporation. No restriction so imposed shall be
binding with respect to those securities issued prior to the adoption of the
restriction unless the holders of such securities are parties to an agreement or
voted in favor of the restriction.
GENERAL
PROVISIONS
Section 7.1. Corporate
Seal. The Corporation may adopt a seal in such form as the Board of
Directors shall from time to time determine.
Section 7.2. Fiscal
Year. The fiscal year of the Corporation shall be as designated by
the Board of Directors from time to time.
Section
7.3. Authorization. All checks, notes, vouchers, warrants,
drafts, acceptances, and other orders for the payment of moneys of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 7.4. Financial
Reports. Financial statements or reports shall not be required to be
sent to the stockholders of the Corporation, but may be so sent in the
discretion of the Board of Directors, in which event the scope of such
statements or reports shall be within the discretion of the Board of Directors,
and such statements or reports shall not be required to have been examined by or
to be accompanied by an opinion of an accountant or firm of
accountants.
Section 7.5. Effect of
By-laws. No provision in these By-laws shall vest any property right
in any stockholder.
AMENDMENTS
The authority to adopt, amend or repeal
By-laws of the Corporation is expressly conferred upon the Board of Directors,
which may take such action by the affirmative vote of a majority of the whole
Board of Directors at any regular or special meeting duly convened after notice
of that purpose, subject always to the powers of the stockholders to adopt,
amend or repeal By-laws.
Page
9