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Exhibit 10.01
AMENDED AND RESTATED
BY-LAWS
of
THE SAGEMARK COMPANIES LTD
A
New York Corporation
(As
amended through May 8, 2008)
Article I.
SHAREHOLDERS
Section 1.
Place of Meetings. Meetings
of shareholders shall be held at such place, either within or
without the State of New York, as shall be designated from time to
time by the Board of Directors.
Section 2.
Annual Meetings. Annual
meetings of shareholders shall be held on such date and at such
time and place as shall be designated from time to time by the
Board of Directors. At each annual meeting the shareholders shall
elect a Board of Directors by plurality vote and transact such
other business as may properly be brought before the
meeting.
Section 3.
Special Meetings. Special
meetings of the shareholders may be called by the Board of
Directors.
Section 4.
Notice of Meetings. Written
notice of each meeting of the shareholders stating the place, date
and time of the meeting shall be given by or at the direction of
the Board of Directors to each shareholder entitled to vote at the
meeting at least ten, but not more than fifty, days prior to the
meeting. Notice of any special meeting shall state in general terms
the purpose for which the meeting is called.
Section 5.
Quorum; Adjournments of Meetings.
The
holders of a majority of the issued and outstanding shares of the
capital stock of the Corporation entitled to vote at a meeting,
present in person or represented by proxy, shall constitute a
quorum for the transaction of business at such meeting; but, if
there be less than a quorum, the holders of a majority of the stock
so present or represented may adjourn the meeting to another time
or place, from time to time until a quorum shall be present,
whereupon the meeting may be held, as adjourned, without further
notice, except as required by law, and any business may be
transacted thereat which might have been transacted at the meeting
as originally called.
Section 6.
Voting. At
any meeting of the shareholders every registered owner of shares
entitled to vote may vote in person or by proxy and, except as
otherwise provided by statute, in the Certificate of Incorporation
or these By-Laws, shall have one vote for each such share standing
in his name on the books of the Corporation. Except as otherwise
required by statute, the Certificate of Incorporation or these
By-Laws, all corporate action, other than the election of
directors, to be taken by vote of the shareholders shall be
authorized by a majority of the votes cast at such meeting by the
holders of shares entitled to vote thereon, a quorum being
present.
Section 7.
Inspectors of Election. The
Board of Directors, or, if the Board shall not have made the
appointment, the Chairman presiding at any meeting of shareholders,
shall have the power to appoint one or more persons to act as
inspectors of election at the meeting or any adjournment thereof,
but no candidate for the office of director shall be appointed as
an inspector at any meeting for the election of
directors.
Section 8.
Chairman of Meetings. The
Chief Executive Officer, if elected, otherwise the President, shall
preside at all meetings of the shareholders. In the absence of the
Chief Executive Officer and the President, a majority of the
members of the Board of Directors present in person at such meeting
may appoint any other officer or director to act as chairman of the
meeting.
Section 9.
Secretary of Meetings. The
Secretary of the Corporation shall act as secretary of all meetings
of the shareholders. In the absence of the Secretary, the chairman
of the meeting shall appoint a person to act as secretary of the
meeting.
Article II.
BOARD OF DIRECTORS
Section 1.
Number of Directors
. The
number of directors shall be not more than nine and not less than
one. The number of directors may be changed from time to time
within the limits herein set by action of the shareholders or of
the Board of Directors.
Section 2.
Vacancies. Whenever
any vacancy shall occur in the Board of Directors by reason of
death, resignation, increase in the number of directors or
otherwise, it may be filled only by a majority of the directors
then in office, although less than a quorum, or by the sole
remaining director, for the balance of the term, or, if the Board
has not filled such vacancy or if there are no remaining directors,
it may be filled by the shareholders.
Section 3.
First Meeting. The
first meeting of each newly elected or appointed Board of
Directors, of which no notice shall be necessary, shall be held
immediately following the annual meeting of shareholders or any
adjournment thereof at the place the annual meeting of shareholders
was held at which such directors were elected, or at such other
place as a majority of the members of the newly elected Board who
are then present shall determine, for the election or appointment
of officers for the ensuing year and the transaction of such other
business as may be brought before such meeting.
Section 4.
Regular Meetings. Regular
meetings of the Board of Directors, other than the first meeting,
may be held without notice at such times and places as the Board of
Directors may from time to time determine.
Section 5.
Special Meetings. Special
meetings of the Board of Directors may be called by order of the
Chairman of the Board, the Chief Executive Officer, the President
or any director, if the Board has less than three directors, or any
two directors, if the Board has more than three directors. Notice
of the time and place of each special meeting shall be given by or
at the direction of the person or persons calling the meeting by
mailing the same at least three days before the meeting or by
telephoning, telegraphing or delivering personally the same at
least twenty-four hours before the meeting to each director. Except
as otherwise specified in the notice thereof, or as required by
statute, the Certificate of Incorporation or these By-Laws, any and
all business may be transacted at any special meeting.
Section 6.
Organization. Every
meeting of the Board of Directors shall be presided over by the
Chief Executive Officer, if elected, otherwise by the President. In
the absence of the Chairman of the Board, Chief Executive
Officer
and
the President, a presiding officer shall be chosen by a majority of
the directors present. The Secretary of the Corporation shall act
as secretary of the meeting, but, in such officer’s absence,
the presiding officer may appoint any person to act as secretary of
the meeting.
Section 7.
Quorum Vote. A
majority of the directors then in office (but in no event less than
one-third of the total number of directors) shall constitute a
quorum for the transaction of business. Less than a quorum may
adjourn any meeting to another time or place from time to time
until a quorum shall be present, whereupon the meeting may be held,
as adjourned, without further notice. Except as otherwise required
by statute, the Certificate of Incorporation or these By-Laws, all
matters coming before any meeting of the Board of Directors shall
be decided by the vote of a majority of the directors present at
the meeting, a quorum being present.
Section 8.
Action without Meeting. Any
action required or permitted to be taken by the Board of Directors
may be taken without a meeting if all members of the Board of
Directors consent in writing to the adoption of a resolution or
resolutions authorizing the action, which resolution or
resolutions, and the written consents thereto by the members of the
Board of Directors, shall be filed with the minutes of the
proceedings of the Board of Directors.
Section 9.
Meeting by Conference Telephone.
Any one or more members of the Board of Directors may participate
in a meeting of such Board of Directors by means of a conference
telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at
a meeting.
Article III.
OFFICERS
Section 1.
Election and Appointment and Term of Office.
(a) The
officers of the Corporation may be a Chairman of the Board or
Co-Chairmen, one or more Vice Chairmen, a Chief Executive Officer,
a President, such number, if any, of Vice Presidents (including
Executive or Senior Vice Presidents) as the Board may from time to
time determine, a Secretary and a Treasurer and such officers as
the Board may from time to time determine. Each such officer shall
be elected or appointed by the Board at its annual meeting or such
other time as the Board shall determine, and shall serve at the
discretion of the Board. Two or more offices may be held by the
same person except that the same person shall not be both President
and Secretary. The Board may also elect or appoint (and may
authorize the Chief Executive Officer or President to appoint) such
other officers (including one or more Assistant Secretaries and
Assistant Treasurers) as it deems necessary who shall have such
authority and shall perform such duties as the Board or the Chief
Executive Officer or President may from to time prescribe. The
Board may, but shall not be required to, designate one or more
officers who shall hold the position(s) and perform the duties of,
Chief Executive Officer, Chief Operating Officer, Chief Financial
Officer Chief Accounting Officer and Chief Information
Officer.
(b) If
additional officers are elected or appointed during the year, each
shall hold office until the next annual meeting of the Board at
which officers are regularly elected or appointed and until his
successor is elected or appointed and qualified or until his
earlier death or resignation or removal in the manner hereinafter
provided.
Section 2.
Duties and Functions.
(a)
Chairman. The
Chairman of the Board shall perform such other duties as are
expressly delegated to the Chairman of the Board by the Board. The
Chairman of the Executive Committee shall be a member of the
Executive Committee and shall preside at meetings of the Executive
Committ
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