AGREEMENT OF MERGER OF INTERNATIONAL MICROCOMPUTER SOFTWARE, INC. A California Corporation INTO BROADCASTER, INC., a Delaware Corporation
Exhibit
2.2
OF
INTERNATIONAL
MICROCOMPUTER SOFTWARE, INC.
A
California Corporation
INTO
BROADCASTER,
INC.,
a
Delaware Corporation
This
AGREEMENT OF MERGER is made and entered into this [__] day of _________,
2005,
by and between International Microcomputer Software, Inc., a California
Corporation, hereinafter called the Disappearing Company, and Broadcaster,
Inc.,
a Delaware Corporation, hereinafter called the Surviving Company.
WHEREAS,
the Disappearing Company has an authorized capital stock consisting of
300,000,000 shares of common stock, no par value per share, of which 29,713,760
shares have been duly issued and are now outstanding and 20,000,000 shares
of
preferred stock, no par value per share, of which no shares have been issued
and
are now outstanding, and
WHEREAS,
the Surviving Company has an authorized capital stock consisting of 300,000,000
shares of common stock, par value $0.001 per share, of which 1 share has
been
duly issued and is now outstanding and 20,000,000 shares of preferred stock,
par
value $0.001 per share, of which no shares have been duly issued and are
now
outstanding, and
WHEREAS,
the Board of Directors of the Disappearing Company and the Surviving Company,
respectively, deem it advisable and generally to the advantage and the welfare
of the two corporate parties and their respective shareholders that the
Disappearing Company merge with the Surviving Company under and pursuant
to the
provisions of the General Corporation Law of California and of the General
Corporation Law of the State of Delaware.
NOW,
THEREFORE, in consideration of the premises and of the mutual agreements
herein
contained and of the mutual benefits hereby provided, it is agreed by and
between the parties hereto as follows:
1. MERGER.
The Disappearing Company shall be and it hereby is merged into the Surviving
Company.
2. EFFECTIVE
DATE. This Agreement of Merger shall become effective immediately upon
compliance with the laws of the States of California and Delaware, the time
of
such effectiveness being hereinafter called the Effective Date.
3. SURVIVING
CORPORATION. The Surviving Company shall survive the merger herein contemplated
and shall continue to be governed by the laws of the State of Delaware, but
the
separate corporate existence of the Disappearing Company shall cease forthwith
upon the Effective Date.
4. AUTHORIZED
CAPITAL. The Authorized capital stock of the Surviving Company following
the
Effective Date shall be 300,000,000 shares of Common Stock, par value $0.001
per
share and 20,000,000 shares of Preferred Stock, par value $0.001 per share,
unless and until the same shall be changed in accordance with the laws of
the
State of Delaware.
5. CERTIFICATE
OF INCORPORATION. The Certificate of Incorporation set forth as Appendix
A
hereto
shall be the Certificate of Incorporation of the Surviving Company following
the
Effective Date unless and until the same shall be amended or repealed in
accordance with the provisions thereof, which power to amend or repeal is
hereby
expressly reserved, and all rights or powers of whatsoever nature conferred
in
such Certificate of Incorporation or herein upon any stockholder or director
or
officer of the Surviving Company or upon any other persons whomsoever are
subject to the reserve power. Such Certificate of Incorporation shall constitute
the Certificate of Incorporation of the Surviving Company separate and apart
from this Agreement of Merger and may be separately certified as the Certificate
of Incorporation of the Surviving Company.
6. BYLAWS.
The Bylaws of the Surviving Company as they exist on the Effective Date shall
be
the Bylaws of the Surviving Company following the Effective Date unless and
until the same shall be amended or repealed in accordance with the provisions
thereof.
7. BOARD
OF
DIRECTORS AND OFFICERS. The members of the Board of Directors and the officers
of the Surviving Company immediately after the effective time of the merger
shall be those persons who were the members of the Board of Directors and
the
officers, respectively, of the Disappearing Company immediately prior to
the
effective time of the merger, and such persons shall serve in such offices,
respectively, for the terms provided by law or in the Bylaws, or until their
respective successors are elected and qualified.
8. FURTHER
ASSURANCE OF TITLE. If at any time the Surviving Company shall consider or
be
advised that any acknowledgements or assurances in law or other similar actions
are necessary or desirable in order to acknowledge or confirm in and to the
Surviving Company any right, title, or interest of the Disappearing Company
held
immediately prior to the Effective Date, the Disappearing Company and its
proper
officers and directors shall and will execute and deliver all such
acknowledgements or assurances in law and do all things necessary or proper
to
acknowledge or confirm such right, title, or interest in the Surviving Company
as shall be necessary to carry out the purposes of this Agreement of Merger,
and
the Surviving Company and the proper officers and directors thereof are fully
authorized to take any and all such action in the name of the Disappearing
Company or otherwise.
9. CONVERSION
OF OUTSTANDING STOCK. Forthwith upon the Effective Date, each of the issued
and
outstanding shares of Common Stock of the Disappearing Company and all rights
in
respect thereof shall be converted into one (1) fully paid and nonassessable
share of Common Stock of the Surviving Company, and each certificate nominally
representing shares of Common Stock of the Disappearing Company shall for
all
purposes be deemed to evidence the ownership of a like number of shares of
Common Stock of the Surviving Company. The holders of such certificates shall
not be required immediately to surrender the same in exchange for certificates
of Common Stock in the Surviving Company but, as certificates nominally
representing shares of Common Stock of the Disappearing Company are surrendered
for transfer, the Surviving Company will cause to be issued certificates
representing shares of Common Stock of the Surviving Company, and, at any
time
upon surrender by any holder of certificates nominally representing shares
of
Common Stock of the Disappearing Company, the Surviving Company will cause
to be
issued therefore certificates for a like number of shares of Common Stock
of the
Surviving Company.
-2-
10. RIGHTS
AND LIABILITIES OF SURVIVING COMPANY. At and after the effective time of
the
merger, the Surviving Company shall succeed to and possess, without further
act
or deed, all the estate, rights, privileges, powers, and franchises, both
public
and private, and all of the property, real, personal, and mixed, of each
of the
parties hereto; all debts due to the Disappearing Company or whatever account
shall be vested in the Surviving Company; all claims, demands, property,
rights,
privileges, powers and franchises and every other interest of either of the
parties hereto shall be as effectively the property of the Surviving Company
as
they were the respective parties hereto; the title to any real estate vested
by
deed or otherwise in the Disappearing Company shall not revert or be in any
way
impaired by reason of the merger, but shall be vested in the Surviving Company;
all rights of creditors and all liens upon any property of either of the
parties
hereto shall be preserved unimpaired, limited in lien to the property affected
by such lien at the effective time of the merger; all debts, liabilities,
and
duties of the respective parties hereto shall thenceforth attach to the
Surviving Company and may be enforced against it to the same extent as if
such
debts, liabilities, and duties had been incurred or contracted by it; and
the
Surviving Company shall indemnify and hold harmless the officers and directors
of each of the parties hereto against all such debts, liabilities and duties
and
against all claims and demands arising out of the merger.
11. SERVICE
OF PROCESS ON SURVIVING COMPANY. The Surviving Company agrees that it may
be
served with process in the State of California in any proceeding for enforcement
of any obligation of the Disappearing Company as well as for the enforcement
of
any obligation of the Surviving Company arising from the merger, including
any
suit or other proceeding to enforce the right of any shareholder as determined
in appraisal proceedings pursuant to the provisions of the General Corporation
Law of California.
12. TERMINATION.
This Agreement of Merger may be terminated and abandoned by action of the
Board
of Directors of the Disappearing Company at any time prior to the Effective
Date, whether before or after approval by the shareholders of the two corporate
parties hereto.
13.
PLAN
OF REORGANIZATION. This Agreement of Merger constitutes a Plan of Reorganization
to be carried out in the manner, on the terms and subject to the conditions
herein set forth.
-3-
14.
EXPENSES AND RIGHTS OF DISSENTING SHAREHOLDERS. The Surviving Company shall
pay
all expenses of carrying this Agreement of Merger into effect and of
accomplishing the merger, including amounts, if any, to which dissenting
shareholders of the Disappearing Company may be entitled by reason of this
merger.
IN
WITNESS WHEREOF each of the corporate parties hereto, pursuant to authority
duly
granted by the Board of Directors, has caused this Agreement of Merger to
be
executed by an authorized officer, [_________________] and [__________________],
respectively.
Dated
_________ [__], 2005.
DISAPPEARING
COMPANY
INTERNATIONAL
MICROCOMPUTER
SOFTWARE,
INC.,
a
California corporation
By:
___________________________
Xxxxxx
Xxxxxxx, President
SURVIVING
COMPANY
BROADCASTER,
INC., a California corporation
By:
___________________________
[_______________],
President
-4-
APPENDIX
A
CERTIFICATE
OF INCORPORATION
-5-
CERTIFICATE
OF INCORPORATION
OF
BROADCASTER,
INC.
*
* * *
*
I.
The
name
of the corporation is Broadcaster, Inc.
II.
The
name
of its registered agent in the State of Delaware is The Corporation Trust
Company. The address of its registered office in the State of Delaware is
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, xx xxx Xxxx xx Xxxxxxxxxx,
Xxxxxx
of New Castle.
III.
The
nature of the business or purposes to be conducted or promoted is to engage
in
any lawful act or activity for which corporations may be organized under
the
General Corporation Law of the State of Delaware.
IV.
A. The
total
number of shares of all classes of capital stock which the corporation shall
have authority to issue is three hundred twenty million (320,000,000) comprised
of three hundred million (300,000,000) shares of Common Stock with a par
value
of one-tenth of one cent ($.001) per share (the "Common Stock") and twenty
million (20,000,000) shares of Preferred Stock with a par value of one-tenth
of
one cent ($.001) per share (the "Preferred Stock"). A description of the
respective classes of stock
and
a statement of the designations, preferences, voting powers (if any),
relative,
participating, optional or other special rights and privileges and the
qualifications,
limitations and restrictions of the Preferred Stock and Common Stock
are
as follows:
B. PREFERRED
STOCK
1.
The
shares of Preferred Stock authorized by this Certificate of Incorporation
may be
issued from time to time in one or more series. For any wholly unissued series
of Preferred Stock, the board of directors is hereby authorized to fix and
alter
the dividend rights, dividend rates, conversion rights, voting rights, rights
and terms of redemption (including sinking fund provisions), redemption prices,
and liquidation preferences, the number of shares constituting any such series
and the designation thereof, or any of them.
2. For
any
series of Preferred Stock having issued and outstanding shares, the board
of
directors is hereby authorized to increase or decrease the number of shares
of
such series when the number of shares of such series was originally fixed
by the
board, but such increase or decrease shall be subject to the limitations
and
restrictions stated in the resolution of the board of directors originally
fixing the number of shares of such series. If the number of shares of any
series is so decreased, then the shares constituting such decrease shall
resume
the status that they had prior to the adoption of the resolution originally
fixing the number of shares of such series.
C. COMMON
STOCK
1.
Relative Rights of Preferred Stock and Common Stock. Except as otherwise
required by this Certificate of Incorporation, all powers, preferences and
rights and qualifications, limitations, or restrictions of the Common Stock
are
subject to those that may be fixed with respect to any shares of the Preferred
Stock.
2.
Voting
Rights. Except as otherwise required by law or this Certificate of
Incorporation, including any certificate of designation for a series of
Preferred Stock, each holder of Common Stock shall have one vote in respect
of
each share of stock held of record by that holder on the books of the
corporation for the election of directors and on all matters submitted to
a vote
of stockholders of the corporation.
3.
Dividends. Subject to any preferential rights of the Preferred Stock, the
holders of shares of Common Stock shall be entitled to receive, when and
if
declared by the board of directors, out of the assets of the corporation
which
by law are available therefor, dividends payable in cash, in property or
in
shares of capital stock.
4.
Dissolution, Liquidation or Winding Up. In the event of any dissolution,
liquidation or winding up of the affairs of the corporation, after distribution
in full of the preferential amounts, if any, to be distributed to the holders
of
shares of the Preferred Stock, holders of Common Stock shall be entitled,
unless
otherwise provided by law or this Certificate of Incorporation, including
any
certificate of designation for a series of Preferred Stock, to receive all
of
the remaining assets of the corporation of whatever kind available for
distribution to stockholders ratably in proportion to the number of shares
of
Common Stock held by them.
V.
The
corporation is to have perpetual existence.
VI.
Any
action required or permitted to be taken by the stockholders of the corporation
must be effected at an annual or special meeting of stockholders of the
corporation and may not be effected by any consent in writing of the
stockholders. Special meetings of stockholders of the corporation may be
called
only by the corporation's Board of Directors, its Chair of the Board of
Directors or its President. Business transacted at special meetings shall
be
confined to the purpose or purposes stated in the notice of
meeting.
VII.
A. In
furtherance and not in limitation of the powers conferred by the
laws
of the State of Delaware, the board of directors of the corporation is
expressly
authorized to adopt, amend or repeal the by-laws of the
corporation.
B. Elections
of directors need not be by written ballot unless the by-laws
of the corporation so provide.
C. The
books
of the corporation may be kept at such place within or without
the State of Delaware as the by-laws of the corporation may provide or
as
may be
designated from time to time by the board of directors of the corporation.
VIII.
Whenever
a compromise or arrangement is proposed between this corporation and its
creditors or any class of them and/or between this corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
corporation or of any creditor or stockholder thereof or on the application
of
any receiver or receivers appointed for this corporation under Section 291
of
Title 8 of the Delaware Code or on the application of trustees in dissolution
or
of any receiver or receivers appointed for this corporation under Section
279 of Title 8 of the Delaware Code, order a meeting of the creditors or
class
of creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, to be summoned in such manner as that court
directs. If a majority in number representing three fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to any compromise
or
arrangement and to any reorganization of this corporation as a consequence
of
such compromise or arrangement, the compromise or arrangement and the
reorganization shall, if sanctioned by the court to which the application
has
been made, be binding on all the creditors or class of creditors, and/or
on all
the stockholders or class of stockholders, of this corporation, as the case
may
be, and also on this corporation.
IX.
No
director of the corporation shall be personally liable to the corporation
or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability: (a) for any breach of the director's duty of loyalty
to
the corporation or its stockholders; (b) for acts or omissions not in good
faith
or which involve intentional misconduct or a knowing violation of law; (c)
under
Section 174 of the Delaware General Corporation Law; or (d) for any transaction
from which the director derived any improper personal benefit. If the Delaware
General Corporation Law is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended.
Any
repeal or modification of this paragraph shall not adversely affect any right
or
protection of a director of the corporation existing at the time of the repeal
or modification.
X.
A.
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 (a "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 or officer of the corporation or is or was serving at the request
of
the corporation as a director or officer, employee or agent 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, employee or agent or in any other capacity while serving as a director,
officer, employee or agent, 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 that law permitted the
corporation to provide before the
amendment) against all expenses, liabilities and losses including, without
limitation, attorneys' fees, judgments, fines, ERISA excise taxes and penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered
by
such person in connection therewith. Such indemnification shall continue
as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of his or her heirs, executors and administrators. However,
the corporation shall indemnify any such person seeking indemnity in connection
with an action, suit or proceeding (or part thereof) initiated by that person
only if that action, suit or proceeding (or part thereof) was authorized
by the
board of directors of the corporation. The rights set forth in this Article
X
shall
be contract rights and shall include the right to be paid expenses incurred
in
defending any such proceeding in advance of its final disposition. However,
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 so
indemnified.
B.
RIGHT OF CLAIMANT TO BRING SUIT.
If a
claim under Paragraph A of this Article X is not paid in full by the corporation
within 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. If successful in whole or in part,
the
claimant shall be entitled to be paid the expense of prosecuting that 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. However, 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 before 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 the claimant
has
not met the applicable standard of conduct.
C.
NON EXCLUSIVITY OF RIGHTS.
The
rights conferred on any person by Paragraphs A and B of this Article X shall
not
be exclusive of any other rights which such person may have or hereafter
may
acquire under any statute, provision of the Certificate of Incorporation,
by
law, agreement, vote of stockholders or of disinterested directors, or
otherwise.
D.
EXPENSES AS A WITNESS.
To the
extent that any director, officer, employee, or agent of the corporation
is by
reason of such position, or a position with another entity at the request
of the
corporation, a witness in any action, suit or proceeding, he or she shall
be
indemnified and held harmless against all costs and expenses actually and
reasonably incurred by him or her on his or her behalf in connection
therewith.
E.
INDEMNITY AGREEMENTS.
The
corporation may enter into agreements with any director, officer, employee
or
agent of the corporation or any person who serves at the request of the
corporation as a director, officer, employee, or agent of another corporation
or
other enterprise, providing for indemnification to the fullest extent
permissible under the Delaware General Corporation Law and the corporation's
Certificate of Incorporation.
F.
EFFECT OF REPEAL OR MODIFICATION.
Any
repeal or modification of this Article X shall not adversely affect any right
of
indemnification or advancement of expenses of a director or officer, employee
or
agent of the corporation existing at the time of such repeal or modification
with respect to any action or omission occurring before the repeal or
modification.
G.
SEPARABILITY.
Each and
every paragraph, sentence, term and provision of this Article X is separate
and
distinct. If any paragraph, sentence, term or provision is held to be invalid
or
unenforceable for any reason, such invalidity or unenforceability shall not
affect the validity or enforceability of any other such paragraph, sentence,
term or provision. To the extent required in order to make any such paragraph,
sentence, term or provision of this Article X valid or enforceable, the
corporation shall, and the indemnitee or potential indemnitee may, request
a
court of competent jurisdiction to modify the paragraph, sentence, term or
provision in order to preserve its validity and provide the broadest possible
indemnification permitted by applicable law.
H.
INSURANCE.
The
corporation may maintain insurance, at its expense, to protect itself and
any
director, officer, employee or agent of the corporation or another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss of the type referred to in this Article X, whether or not
the
corporation would have the power to indemnify such person against such expense,
liability or loss under applicable law.
I.
INDEMNIFICATION OF EMPLOYEES AND AGENTS.
The
corporation may, to the extent authorized from time to time by the board
of
directors, grant rights to indemnification, and to the advancement of expenses
to any employee or agent of the corporation to the fullest extent of the
provisions of this Article with respect to the indemnification and advancement
of expenses of directors and officers of the corporation.
XI.
The
corporation reserves the right to amend or repeal any provision of this
Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon any stockholders by this Certificate
of
Incorporation are granted subject to this reservation.
XII.
The
powers of the incorporator are to terminate upon the filing of this Certificate
of Incorporation with the Secretary of the State of Delaware.
The
undersigned, being the incorporator hereinbefore named, for the purpose of
forming a corporation pursuant to the General Corporation Law of the State
of
Delaware, does make this certificate of incorporation, hereby declaring and
certifying that this is his act and deed and the facts herein stated are
true,
and accordingly has hereunto set his hand this 17th day of November
2005.
__________________________
Xxxxx
Xxxxxxx, Incorporator
BYLAWS
OF
BROADCASTER,
INC.,
a
Delaware corporation
BYLAWS
OF
BROADCASTER,
INC.
TABLE
OF CONTENTS
|
ARTICLE
I - OFFICES
|
1
|
|
|
|
|
1.1
Registered Office
|
1
|
|
|
|
|
1.2
Other Offices
|
1
|
|
|
|
|
ARTICLE
II - STOCKHOLDERS
|
1
|
|
|
|
|
2.1
Annual Meeting
|
1
|
|
|
|
|
2.2
Special Meeting
|
1
|
|
|
|
|
2.3
Place
|
1
|
|
|
|
|
2.4
Notice
|
1
|
|
|
|
|
2.5
Record Date
|
2
|
|
|
|
|
2.6
Quorum
|
2
|
|
|
|
|
2.7
Required Vote
|
3
|
|
|
|
|
2.8
Proxies and Voting
|
3
|
|
|
|
|
2.9
Notice of Stockholder Business
|
3
|
|
|
|
|
210
Lost Stock Certificates
|
4
|
|
|
|
|
ARTICLE
III - BOARD OF DIRECTORS
|
4
|
|
|
|
|
3.1
Number
|
4
|
|
|
|
|
3.2
Powers
|
4
|
|
|
|
|
3.3
Election
|
4
|
|
|
|
|
3.4
Term of Office and Vacancies
|
4
|
|
|
|
|
3.5
Removal
|
5
|
|
|
|
|
3.6
Resignation
|
5
|
|
|
|
|
3.7
Compensation
|
5
|
|
|
|
|
3.8
Committees
|
5
|
|
|
|
|
3.9
Time and Place of Meetings and Telephone Meetings
|
6
|
ii
|
|
|
|
3.10
Call
|
6
|
|
|
|
|
3.11
Notice
|
6
|
|
|
|
|
3.12
Meeting Without Regular Call and Notice
|
7
|
|
|
|
|
3.13
Action Without Meeting
|
7
|
|
|
|
|
3.14
Quorum and Required Vote
|
7
|
|
|
|
|
3.15
Committee Meetings
|
7
|
|
|
|
|
ARTICLE
IV - OFFICERS
|
7
|
|
|
|
|
4.1
Titles and Relation to Board of Directors
|
7
|
|
|
|
|
4.2
Election, Term of Office and Vacancies
|
7
|
|
|
|
|
4.3
Resignation
|
8
|
|
|
|
|
4.4
Chairman of the Board; President
|
8
|
|
|
|
|
4.5
Secretary
|
8
|
|
|
|
|
4.6
Treasurer
|
9
|
|
|
|
|
4.7
Other Officers
|
9
|
|
|
|
|
4.8
Salaries
|
9
|
|
|
|
|
ARTICLE
V - AMENDMENT OF BYLAWS
|
9
|
iii
BYLAWS
OF
BROADCASTER,
INC.
ARTICLE
I - OFFICES
1.1
Registered
Office.
The
registered office of the corporation shall be in the City of Wilmington,
County
of New Castle, State of Delaware.
1.2
Other
Offices.
The
corporation may also have offices at such other places both within and without
the State of Delaware as the board of directors may from time to time determine
or the business of the corporation may require.
ARTICLE
II - STOCKHOLDERS
2.1 Annual
Meeting.
The
annual meeting of the stockholders for the election of directors and the
transaction of such other business as may properly come before the meeting
shall
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.
2.2 Special
Meeting.
Special
meetings of stockholders may be called at any time by the board of directors,
the Chairman of the Board or the President of
the
corporation.
2.3 Place.
Meetings
of stockholders shall be held at the principal executive office of the
corporation or at any other place, within or without Delaware, which is
designated by the board of directors or the President.
2.4 Notice.
(a)
Annual and Special Meetings. A written notice of each meeting of stockholders
shall be given not more than 60 days and, except as provided below, not less
than ten days before the meeting to each stockholder entitled to vote at
the
meeting. The notice shall state the place, date and hour of the meeting and,
if
directors are to be elected at the meeting, the names of the nominees intended
to be presented by management for election. The notice shall also state (i)
in
the case of an annual meeting, those matters which the board of directors
intends to present for action by the stockholders, and (ii) in the case of
a
special meeting, the general nature of the business to be transacted and
that no
other business may be transacted. Notice shall be delivered personally, by
mail
or other means addressed to the stockholder at the address of such stockholder
appearing on the books of the corporation, the address given by the stockholder
to the corporation for the purpose of notice or as otherwise provided by
law.
1
(b)
Adjourned Meetings. Notice of an adjourned meeting need not be given if (i)
the
meeting is adjourned for 30 days or less, (ii) the time and place of the
adjourned meeting are announced at the meeting at which the adjournment is
taken
and (iii) no new record date is fixed for the adjourned meeting. Otherwise,
notice of the adjourned meeting shall be given as in the case of an original
meeting.
2.5 Record
Date.
The
board
of directors may fix in advance a record date for the determination of the
stockholders entitled to notice of any meeting, to vote, to receive any dividend
or other distribution or allotment of rights or to exercise any rights. The
record date shall be not more than 60 nor less than ten days prior to the
date
of the meeting nor more than 60 days prior to such other action. If no record
date is fixed, 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 business day next preceding the day on which notice is given, or, if
notice
is waived, the close of business on the business day next preceding the day
on
which the meeting is held. Except as otherwise provided by law, when a record
date is fixed, as provided herein, only stockholders on the record date are
entitled to notice and to vote, to receive the dividend, distribution or
allotment of rights or to exercise rights, as the case may be, notwithstanding
any transfer of shares on the books of the corporation occurring after the
record date. Except as otherwise provided by law, the corporation shall be
entitled to treat the holder of record of any shares as the holder in fact
of
such shares and shall not be bound to recognize any equitable or other claim
to
or interest in such shares on the part of any other person, whether or not
the
corporation shall have express or other notice of such claim or interest.
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 unless
the
board of directors fixes a new record date
2.6 Quorum.
The
holders of a majority of the stock issued and outstanding and entitled to
vote
thereat, present in person or represented by proxy, shall constitute a quorum
at
all meetings of the stockholders for the transaction of business except as
otherwise provided by statute or by the certificate of incorporation. If,
however, such quorum shall not be present or represented at any meeting of
the
stockholders, the stockholders entitled to vote thereat, present in person
or
represented by proxy, shall have power to adjourn the meeting from time to
time,
without notice other than announcement at the meeting, until a quorum shall
be
present or represented. At such adjourned meeting at which a quorum shall
be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for
more
than 30 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.
2
2.7 Required
Vote.
When
a
quorum is present at any meeting, except with respect to the election of
directors, the vote of the holders of a majority of the stock having voting
power present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which by express
provision of statute or of the certificate of incorporation, a different
vote is
required, in which case such express provision shall govern and control the
decision of such question.
2.8 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. Unless otherwise provided
in the
certificate of incorporation, each stockholder shall at every meeting of
the
stockholders be entitled to one vote in person or by proxy for each share
of the
capital stock having voting power held by such stockholder, but no proxy
shall
be voted on after three years from its date, unless the proxy provides for
a
longer period.
2.9 Notice
of Stockholder Business.
At
an
annual or special meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before a meeting, business must be (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board
of
Directors, (b) properly brought before the meeting by or at the direction
of the
Board of Directors, or (c) properly brought before an annual meeting by a
stockholder and if, and only if, the notice of a special meeting provides
for
business to be brought before the meeting by stockholders, properly brought
before the special meeting by a stockholder. For business to be properly
brought
before a meeting by a stockholder, 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 offices of the corporation no later than (i) in the case of an
annual
meeting, ninety (90) days before the anticipated date of the next annual
meeting, under the assumption that the next annual meeting will occur on
the
same calendar day as the day of the most recent annual meeting, and (ii)
in the
case of a special meeting, ten (10) days prior to date of such meeting. A
stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual or special meeting (1) a
brief
description of the business desired to be brought before the annual or special
meeting and the reasons for conducting such business at the annual or special
meeting, (2) the name and address, as they appear on the corporation's books,
of
the stockholder proposing such business, (3) the class and number of shares
of
the corporation which are beneficially owned by the stockholder, and (4)
any
material interest of the stockholder in such business. Notwithstanding anything
in the Bylaws to the contrary, no business shall be conducted at an annual
or
special meeting except in accordance with the procedures set forth in this
Section 2.9. The chairman of an annual or special meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting and in accordance with the provisions of this
Section
2.9, and if he should so determine, he shall so declare to the meeting and
any
such business not properly brought before the meeting shall not be
transacted.
3
2.10 Lost
Stock Certificates.
The
corporation may cause a new stock certificate to be issued in place of any
certificate previously issued by the corporation alleged to have been lost,
stolen or destroyed. The corporation may, at its discretion and as a condition
precedent to such issuance, require the owner of such certificate to deliver
an
affidavit stating that such certificate was lost, stolen or destroyed or
to give
the corporation a bond or other security sufficient to indemnify it against
any
claim that may be made against it, including any expense or liability, on
account of the alleged loss, theft or destruction or the issuance of a new
certificate.
ARTICLE
III - BOARD OF DIRECTORS
3.1 Number.
The
number of directors who shall constitute the whole board shall not be less
than
five (5) nor more than nine (9). The exact number of directors shall be
determined from time to time by resolution of the board of
directors.
3.2 Powers.
The
business of the corporation shall be managed by or under the direction of
its
board of directors, which may exercise all such powers of the corporation
and do
all such lawful acts and things as are not by statute or by the certificate
of
incorporation or by these bylaws directed or required to be exercised or
done by
the stockholders.
3.3 Election.
Except
as
provided in Section 3.2, the directors shall be elected at the annual meeting
of
the stockholders by a plurality vote. Each director elected shall hold office
until his or her successor is elected and qualified. Directors need not be
stockholders.
3.4 Term
of Office and Vacancies.
Vacancies
and newly created directorships resulting from any increase in the authorized
number of directors elected by all of the stockholders having the right to
vote
as a single class may be filled by a majority of the directors then in office,
though less than a quorum, or by a sole remaining director; whenever the
holders
of any class or classes of stock or series thereof are entitled, pursuant
to the
certificate of incorporation, to elect one or more directors, vacancies and
newly created directorships of such class or classes or series may be filled
by
a majority of the directors elected by such class or classes or series then
in
office, or by a sole remaining director so elected. The directors so chosen
shall hold office until the next annual election and until their successors
are
duly elected and shall qualify, unless sooner displaced. If there are no
directors in office, then an election of directors may be held in the manner
provided by statute.
4
3.5 Removal.
Unless
otherwise restricted by the certificate of incorporation, bylaws or statute,
any
director or the entire board of directors may be removed, with or without
cause,
by the holders of a majority of shares entitled to vote at an election of
directors.
3.6
Resignation.
Any
director may resign by giving notice to the board of directors, the Chairman
of
the Board, the President or the Secretary. The resignation of a director
shall
be effective when given unless the director specifies a later time. The
resignation shall be effective regardless of whether it is accepted by the
corporation.
3.7
Compensation.
Unless
otherwise restricted by the certificate of incorporation or these bylaws,
the
board of directors shall have the authority to fix the compensation of
directors. The directors may be paid their expenses, if any, of attendance
at
each meeting of the board of directors and may be paid a fixed sum for
attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
3.8 Committees.
The
board
of directors may, by resolution passed by a majority of the whole board,
designate one or more committees, each committee to consist of one or more
of
the directors of the corporation. The board many designate one or more directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee.
Any
committee, to the extent provided in the resolution of the board of directors,
shall have and may exercise all the powers and authority of the board of
directors in the management of the business and affairs of the corporation,
and
may authorize the seal of the corporation to be affixed to all papers which
may
require it; but no committee shall have the power or authority of the board
of
directors in reference to:
5
(a)
amending the certificate of incorporation (except to the extent provided
in
resolutions of the board of directors and permitted by the General Corporation
Law of the State of Delaware);
(b)
adopting an agreement of merger or consolidation;
(c)
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets; or
(d)
recommending to the stockholders a dissolution of the corporation or
a
revocation of a dissolution.
Such
committee or committees shall have such name or names as may be determined
from
time to time by resolution adopted by the board of directors. Each committee
shall keep regular minutes of its meetings and report the same to the board
of
directors when required.
3.9 Time
and Place of Meetings and Telephone Meetings.
Unless
the board of directors determines otherwise, the board shall hold a regular
meeting during each quarter of the corporation's fiscal year. One such meeting
shall take place immediately following the annual meeting of stockholders.
All
meetings of directors shall be held at the principal executive office of
the
corporation or at such other place, within or without the State of Delaware,
as
shall be designated in the notice of the meeting or in a resolution of the
board
of directors. Directors may participate in a meeting through use of conference
telephone or similar communications equipment, provided that all members
participating in the meeting can hear each other.
3.10 Call.
Meetings
of the board of directors, whether regular or special, may be called by the
Chairman of the Board, the President, the Secretary, any Vice President or
any
two directors.
3.11 Notice.
Regular
meetings of the board of directors may be held without notice if the time
of
such meetings has been fixed by the board and publicized among all directors.
Special meetings shall be held upon four days' notice by mail or 48 hours'
notice delivered personally or by telephone or electronic correspondence,
and
regular meetings shall be held upon similar notice if notice is required
for
such meetings. Neither a notice nor a waiver of notice must specify the purpose
of any regular or special meeting. Notice of the time and place of holding
an
adjourned meeting need not be given to absent directors if the time and place
of
the adjourned meeting is announced at the meeting at which the adjournment
is
taken, but if a meeting is adjourned for more than 24 hours, notice of the
adjourned meeting shall be given prior to the time of such meeting to the
directors who were not present at the time of the adjournment.
6
3.12 Meeting
Without Regular Call and Notice.
The
transactions of any meeting of the board of directors, however called and
noticed or wherever held, are as valid as though had at a meeting duly held
after regular call and notice if a quorum is present and if, either before
or
after the meeting, each of the directors not present signs a written waiver
of
notice. For such purposes, a director shall not be considered present at
a
meeting if, although in attendance at the meeting, the director protests
the
lack of notice prior to the meeting or at its commencement.
3.13 Action
Without Meeting.
Any
action required or permitted to be taken by the board of directors may be
taken
without a meeting, if all of the members of the board individually or
collectively consent in writing to such action.
3.14 Quorum
and Required Vote.
At
all
meetings of the board a majority of the total number of authorized directors
shall constitute a quorum for the transaction of business and the act of
a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation.
If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be
present.
3.15 Committee
Meetings.
The
principles set forth in Sections 3.9 through 3.14 of these bylaws shall apply
to
committees of the board of directors and to actions taken by such
committees.
ARTICLE
IV - OFFICERS
4.1 Titles
and Relation to board of directors.
The
officers of the corporation shall include a Chairman of the Board or a President
or both, a Secretary and a Treasurer. The board of directors may also choose
one
or more Vice Presidents, Assistant Secretaries, Assistant Treasurers or other
officers. Any number of offices may be held by the same person. All officers
shall perform their duties and exercise their powers subject to the direction
of
the board of directors.
4.2 Election,
Term of Office and Vacancies.
At
its
regular meeting after each annual meeting of stockholders, or at any other
such
time as the board of directors shall designate, the board of directors shall
choose the officers of the corporation. The board may choose additional officers
or fill vacant offices at any other time. No officer must be a member of
the
board of directors except the Chairman of the Board. The officers shall hold
office until their successors are chosen, except that the board of directors
may
remove any officer at any time.
7
4.3 Resignation.
Any
officer may resign at any time upon notice to the corporation without prejudice
to the rights, if any, of the corporation under any contract to which the
officer is a party. The resignation of an officer shall be effective when
given
unless the officer specifies a later time. The resignation shall be effective
regardless of whether it is accepted by the corporation.
4.4
Chairman
of the Board; President.
If
the
board of directors elects a Chairman of the Board, such officer shall preside
over all meetings of the board of directors and of stockholders. If there
be no
Chairman of the Board, the President shall perform such duties. The board
of
directors shall designate either the Chairman of the Board or the President
as
the chief executive officer and may prescribe the duties and powers of the
chief
executive officer. If there is no Chairman of the Board, the President shall
be
the chief executive officer.
4.5 Secretary.
Unless
otherwise determined by the board of directors or the chief executive officer,
the Secretary shall have the following powers and duties:
(a)
Record of Corporate Proceedings. The Secretary shall attend all meetings
of
stockholders and the board of directors and its committees and shall record
all
votes and the minutes of such meetings in a book to be kept at the principal
executive office of the corporation or at such other place as the board may
determine. The Secretary shall keep at the corporation's principal executive
office, if in California, or at its principal business office in California
if
the principal executive office is not in California, the original or
a copy
of these bylaws, as amended.
(b)
Record of Shares. Unless a transfer agent is appointed by the board of directors
to keep a share register, the Secretary shall keep a share register at the
principal executive office of the corporation showing the names of the
stockholders and their addresses, the number and class of shares held by
each,
the number and date of certificates issued and the number and date of
cancellation of each certificate surrendered for cancellation.
(c)
Notices. The Secretary shall give such notices as may be required by law
or
these bylaws.
8
4.6 Treasurer.
Unless
the board of directors designates another chief financial officer, the Treasurer
shall be the chief financial officer of the corporation. Unless otherwise
determined by the board of directors or the chief executive officer, the
Treasurer shall have custody of the corporate funds and securities, shall
keep
adequate and correct accounts of the corporation's properties and business
transactions, shall disburse such funds of the corporation as may be ordered
by
the board or the chief executive officer (taking proper vouchers for such
disbursements), and shall render to the chief executive officer and the board,
at regular meetings of the board or whenever the board may require, an account
of all transactions and the financial condition of the corporation.
4.7 Other
Officers.
The
other
officers of the corporation, if any, shall exercise such powers and perform
such
duties as the board of directors or the chief executive officer shall
prescribe.
4.8 Salaries.
The
board
of directors shall fix the salary of the chief executive officer and may
fix the
salaries of other employees of the corporation, including the other officers.
If
the board does not fix the salaries of the other officers, the chief executive
officer shall fix such salaries.
ARTICLE
V - AMENDMENT OF BYLAWS
5.1 Bylaws
may be adopted, amended or repealed by the affirmative vote of a majority
of the
outstanding shares entitled to vote or by the board of directors.
9
I,
[______________________], do hereby
certify:
1. That
I am the duly elected
Secretary of Broadcaster, Inc., a Delaware Corporation.
2. That
the foregoing Bylaws
constitute the Bylaws of the Corporation as of the [__] day of [___________],
2005.
IN
WITNESS WHEREOF, I have executed
this certificate as of the [__] day of [___________], 2005.
_____________________________
[__________________],
Secretary
10
