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EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
QUANTA SERVICES, INC.
AUGUST 23, 2000
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TABLE OF CONTENTS
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ARTICLE I
OFFICES
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SECTION 1.1 REGISTERED OFFICE....................................................................................1
SECTION 1.2 OTHER OFFICES........................................................................................1
ARTICLE II
STOCKHOLDERS
SECTION 2.1 PLACE OF MEETINGS....................................................................................1
SECTION 2.2 ANNUAL MEETING.......................................................................................1
SECTION 2.3 LIST OF STOCKHOLDERS.................................................................................1
SECTION 2.4 SPECIAL MEETINGS.....................................................................................2
SECTION 2.5 NOTICE...............................................................................................2
SECTION 2.6 QUORUM OF STOCKHOLDERS...............................................................................2
SECTION 2.7 CONDUCT OF MEETINGS..................................................................................2
SECTION 2.8 ADJOURNMENT OF MEETING...............................................................................3
SECTION 2.9 VOTING...............................................................................................3
SECTION 2.10 METHOD OF VOTING.....................................................................................3
SECTION 2.11 RECORD DATE..........................................................................................4
SECTION 2.12 NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.......................................................4
SECTION 2.13 INSPECTORS OF ELECTION...............................................................................8
SECTION 2.14 POSTPONEMENT AND CANCELLATION OF MEETING.............................................................9
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1 MANAGEMENT...........................................................................................9
SECTION 3.2 QUALIFICATION; ELECTION; TERM........................................................................9
SECTION 3.3 NUMBER...............................................................................................9
SECTION 3.4 REMOVAL..............................................................................................9
SECTION 3.5 VACANCIES............................................................................................9
SECTION 3.6 PLACE OF MEETINGS...................................................................................10
SECTION 3.7 ANNUAL MEETING......................................................................................10
SECTION 3.8 REGULAR MEETINGS....................................................................................10
SECTION 3.9 SPECIAL MEETINGS....................................................................................10
SECTION 3.10 QUORUM..............................................................................................10
SECTION 3.11 COMMITTEES..........................................................................................10
SECTION 3.12 ACTION BY CONSENT...................................................................................11
SECTION 3.13 COMPENSATION OF DIRECTORS...........................................................................11
SECTION 3.14 CONDUCT OF MEETINGS.................................................................................11
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ARTICLE IV
NOTICE
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SECTION 4.1 FORM OF NOTICE......................................................................................11
SECTION 4.2 WAIVER..............................................................................................12
ARTICLE V
OFFICERS AND AGENTS
SECTION 5.1 IN GENERAL..........................................................................................12
SECTION 5.2 ELECTION............................................................................................12
SECTION 5.3 OTHER OFFICERS AND AGENTS...........................................................................12
SECTION 5.4 COMPENSATION........................................................................................12
SECTION 5.5 TERM OF OFFICE AND REMOVAL..........................................................................12
SECTION 5.6 EMPLOYMENT AND OTHER CONTRACTS......................................................................12
SECTION 5.7 CHAIRMAN OF THE BOARD OF DIRECTORS..................................................................13
SECTION 5.8 CHIEF EXECUTIVE OFFICER.............................................................................13
SECTION 5.9 CHIEF OPERATING OFFICER.............................................................................13
SECTION 5.10 CHIEF FINANCIAL OFFICER............................................................................13
SECTION 5.11 SECRETARY..........................................................................................13
SECTION 5.12 BONDING............................................................................................14
ARTICLE VI
CERTIFICATES REPRESENTING SHARES
SECTION 6.1 FORM OF CERTIFICATES................................................................................14
SECTION 6.2 LOST CERTIFICATES...................................................................................14
SECTION 6.3 TRANSFER OF SHARES..................................................................................15
SECTION 6.4 REGISTERED STOCKHOLDERS.............................................................................15
ARTICLE VIII
INDEMNIFICATION
SECTION 7.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS...........................................................15
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.1 DIVIDENDS...........................................................................................18
SECTION 8.2 RESERVES............................................................................................19
SECTION 8.3 TELEPHONE AND SIMILAR MEETINGS......................................................................19
SECTION 8.4 BOOKS AND RECORDS...................................................................................19
SECTION 8.5 FISCAL YEAR.........................................................................................19
SECTION 8.6 SEAL................................................................................................19
SECTION 8.7 INSURANCE...........................................................................................19
SECTION 8.8 RESIGNATION.........................................................................................19
SECTION 8.9 AMENDMENT OF BYLAWS.................................................................................19
SECTION 8.10 INVALID PROVISIONS.................................................................................19
SECTION 8.11 RELATION TO THE CERTIFICATE OF INCORPORATION.......................................................20
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AMENDED AND RESTATED BYLAWS
OF
QUANTA SERVICES, INC.
ARTICLE I
OFFICES
SECTION 1.1 REGISTERED OFFICE. The registered office and registered
agent of Quanta Services, Inc. (the "Corporation") required to be maintained in
the State of Delaware by the General Corporation Law of the State of Delaware
(the "DGCL"), will be as from time to time set forth in the Corporation's
Certificate of Incorporation (as may be amended from time to time) or in any
certificate filed with the Secretary of State of the State of Delaware, and the
appropriate county Recorder or Recorders, as the case may be, to amend such
information.
SECTION 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
SECTION 2.1 PLACE OF MEETINGS. All meetings of the stockholders for the
election of Directors will be held at such place, within or without the State of
Delaware, or, if so determined by the Board in its sole discretion, at no place
(but rather by means of remote communication), as may be fixed from time to time
by the Board of Directors. Meetings of stockholders for any other purpose may be
held at such time and place, within or without the State of Delaware or, if so
determined by the Board in its sole discretion, at no place (but rather by means
of remote communication), as may be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
SECTION 2.2 ANNUAL MEETING. An annual meeting of the stockholders will
be held at such time as may be determined by the Board of Directors, at which
meeting the stockholders will elect a Board of Directors, and transact such
other business as may properly be brought before the meeting pursuant to these
Bylaws.
SECTION 2.3 LIST OF STOCKHOLDERS. At least ten days before each meeting
of stockholders, a complete list of the stockholders entitled to vote at said
meeting, arranged in alphabetical order, with the address of and the number of
voting shares registered in the name of each, will be prepared by the officer or
agent having charge of the stock transfer books. Such list will be open to the
examination of any stockholder, for any purpose germane to the meeting, as
required by applicable law. If the meeting is to be held at a place, such list
will be produced and kept open at the time and
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place of the meeting during the whole time thereof, and will be subject to the
inspection of any stockholder who may be present. If the meeting is to be held
solely by means of remote communication, then the list shall also be open to the
examination of any stockholder during the whole time of the meeting on a
reasonably accessible electronic network, and the information required to access
such list shall be provided with the notice of the meeting.
SECTION 2.4 SPECIAL MEETINGS. Special meetings of the stockholders of
the Corporation may be called only by the Chairman of the Board of Directors and
shall be called within ten (10) days after receipt of the written request of the
Board of Directors, pursuant to a resolution approved by a majority of the whole
Board of Directors. Business transacted at all special meetings will be confined
to the purpose stated in the notice of the meeting. The Board of Directors or,
in the absence of action by the Board of Directors, the Chairman of the Board
shall have the sole power to determine the date, time and place for any special
meeting of stockholders. Following such determination, it shall be the duty of
the Secretary to cause notice to be given to the stockholders entitled to vote
at such meeting, that a meeting will be held at the place, time and date and in
accordance with the record date determined by the Board of Directors or the
Chairman of the Board. Except to the extent specified in the Certificate of
Incorporation or the resolutions of the Board of Directors creating any class or
series of preferred stock of the Corporation, stockholders of the Corporation
may not call a special meeting.
SECTION 2.5 NOTICE. Notice stating the place, if any, day, the means of
remote communications, if any, by which stockholders and proxy holders may be
deemed to be present in person and vote at such meeting and hour of any meeting
of the stockholders and, in case of a special meeting, the purpose or purposes
for which the meeting is called, will be delivered not less than ten nor more
than sixty days before the date of the meeting, in accordance with applicable
law, by or at the direction of the Chairman of the Board, the Chief Executive
Officer, the Secretary, or the officer or person calling the meeting, to each
stockholder of record entitled to vote at the meeting. If mailed, such notice
will be deemed to be delivered when deposited in the United States mail,
addressed to the stockholder at his address as it appears on the stock transfer
books of the Corporation, with the postage thereon prepaid.
SECTION 2.6 QUORUM OF STOCKHOLDERS. Except as otherwise provided by any
statute, the Certificate of Incorporation or these Bylaws, the holders of a
majority of all outstanding shares of stock entitled to vote at any meeting of
stockholders, present in person or represented by proxy, shall constitute a
quorum for the transaction of any business at such meeting. Shares of its own
stock belonging to the Corporation or to another corporation, if a majority of
the shares entitled to vote in the election of directors of such other
corporation is held, directly or indirectly, by the Corporation, shall neither
be entitled to vote nor be counted for quorum purposes; provided, however, that
the foregoing shall not limit the right of the Corporation or any subsidiary of
the Corporation to vote stock, including but not limited to its own stock, held
by it in a fiduciary capacity. The chair of the meeting shall have the power and
duty to determine whether a quorum is present at any stockholder meeting.
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SECTION 2.7 CONDUCT OF MEETINGS. Meetings of stockholders shall be
presided over by the Chairman or by another chair designated by the Board. The
date and time of the opening and the closing of the polls for each matter upon
which the stockholders will vote at a meeting shall be determined by the chair
of the meeting and announced at the meeting. The Board may adopt by resolution
such rules and regulations for the conduct of the meeting of stockholders as it
shall deem appropriate. Except to the extent inconsistent with such rules and
regulations as adopted by the Board, the chair of any meeting of stockholders
shall have the exclusive right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such
chair, are appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board or prescribed by the
chair of the meeting, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules and
procedures for maintaining order at the meeting and the safety of those present;
(iii) limitations on attendance at or participation in the meeting to
stockholders of record of the Corporation, their duly authorized and constituted
proxies or such other persons as the chair of the meeting shall determine; (iv)
restrictions on entry to the meeting after the time fixed for the commencement
thereof; and (v) limitations on the time allotted to questions or comments by
participants. Unless and to the extent determined by the Board or the chair of
the meeting, meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
SECTION 2.8 ADJOURNMENT OF MEETING. Any meeting of stockholders, annual
or special, may be adjourned solely by the chair of the meeting from time to
time to reconvene at the same or some other time, date and place. The
stockholders present at a meeting shall not have authority to adjourn the
meeting. Notice need not be given of any such adjourned meeting if the time,
date and place, if any, thereof and the means of remote communications, if any,
by which the stockholders and proxy holders may be deemed to be present in
person and vote at such adjourned meeting are announced at the meeting at which
the adjournment is taken. If the time, date and place of the adjourned meeting
are not announced at the meeting at which the adjournment is taken, if the
adjournment is for more than 30 days or if after the adjournment a new record
date is fixed for the adjourned meeting, then the Secretary shall give notice of
the adjourned meeting as provided in Section 2.5, not less than ten (10) days
prior to the date of the adjourned meeting.
SECTION 2.9 VOTING. When a quorum is present at any meeting of the
Corporation's stockholders, the vote of the holders of a majority of the shares
entitled to vote on, and voted for or against any matter will decide any
questions brought before such meeting, unless the question is one upon which, by
express provision of law, the Certificate of Incorporation, or these Bylaws, the
rules or regulations of any stock exchange applicable to the Corporation or
pursuant to any regulation applicable to the Corporation or its securities, a
different vote is required, in which case such express provision will govern and
control the decision of such question. The stockholders present in person or by
proxy at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
SECTION 2.10 METHOD OF VOTING. Each outstanding share of the
Corporation's capital stock, regardless of class, will be entitled to one vote
on each matter submitted to a vote at a meeting of
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stockholders, except to the extent that the voting rights of the shares of any
class or classes are limited or denied by the Certificate of Incorporation, as
amended from time to time. At any meeting of the stockholders, every stockholder
having the right to vote will be entitled to vote in person or by proxy. Each
proxy will be revocable unless expressly provided therein to be irrevocable and
if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A proxy may be made irrevocable regardless of
whether the interest with which it is coupled is an interest in the stock itself
or an interest in the Corporation generally. Voting at meetings of stockholders
need not be by written ballot.
SECTION 2.11 RECORD DATE. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action other than stockholder action by written
consent, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date: (i) in the case of
determination of stockholders entitled to vote at any meeting of stockholders or
adjournment thereof, shall, unless otherwise required by law, not be more than
sixty (60) nor less than ten (10) days before the date of such meeting, and (ii)
in the case of any other lawful action other than stockholder action by written
consent, shall not be more than sixty days prior to such other action. If no
record date is fixed by the Board of Directors: (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 for any other purpose (other than stockholder
action by written consent) shall be at the close of business on the day on which
the Board of Directors adopts the resolution relating thereto. 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 2.12 NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.
(a) Annual Meetings of Stockholders.
(1) Annual Meetings of Stockholders. (1) Nominations
of persons for election to the Board of Directors of the
Corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of
stockholders only (a) pursuant to the Corporation's notice of
meeting (or any supplement thereto), (b) by or at the
direction of the Board of Directors or (c) by any stockholder
of the Corporation who was a stockholder of record of the
Corporation at the time the notice provided for in this
Section 2.12 is delivered to the Secretary of the Corporation,
who is entitled to vote
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at the meeting and who complies with the notice procedures set
forth in this Section 2.12.
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to
clause (c) of paragraph (A)(1) of this Section 2.12, the
stockholder must have given timely notice thereof in writing
to the Secretary of the Corporation and any such proposed
business other than the nominations of persons for election to
the Board of Directors must constitute a proper matter for
stockholder action. To be timely, a stockholder's notice shall
be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of
business on the ninetieth day nor earlier than the close of
business on the one hundred twentieth day prior to the first
anniversary of the preceding year's annual meeting (provided,
however, that in the event that the date of the annual meeting
is more than thirty days before or more than seventy days
after such anniversary date, notice by the stockholder must be
so delivered not earlier than the close of business on the one
hundred twentieth day prior to such annual meeting and not
later than the close of business on the later of the ninetieth
day prior to such annual meeting or the tenth day following
the day on which public announcement of the date of such
meeting is first made by the Corporation). In no event shall
the public announcement of an adjournment or postponement of
an annual meeting commence a new time period (or extend any
time period) for the giving of a stockholder's notice as
described above. Such stockholder's notice shall set forth:
(a) as to each person whom the stockholder proposes to
nominate for election as a director all information relating
to such person that is required to be disclosed in
solicitations of proxies for election of directors in an
election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act
of 1934, as amended (the "Exchange Act") and Rule 14a-11
thereunder (and such person's written consent to being named
in the proxy statement as a nominee and to serving as a
director if elected); (b) as to any other business that the
stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the
meeting, the text of the proposal or business (including the
text of any resolutions proposed for consideration and in the
event that such business includes a proposal to amend the
Bylaws of the Corporation, the language of the proposed
amendment), the reasons for conducting such business at the
meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf
the proposal is made; and (c) as to the stockholder giving the
notice and the beneficial owner,
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if any, on whose behalf the nomination or proposal is made (i)
the name and address of such stockholder, as they appear on
the Corporation's books, and of such beneficial owner, (ii)
the class and number of shares of capital stock of the
Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner, (iii) a representation
that the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to propose such
business or nomination, and (iv) a representation whether the
stockholder or the beneficial owner, if any, intends or is
part of a group which intends (a) to deliver a proxy statement
and/or form of proxy to holders of at least the percentage of
the Corporation's outstanding capital stock required to
approve or adopt the proposal or elect the nominee and/or (b)
otherwise to solicit proxies from stockholders in support of
such proposal or nomination. The foregoing notice requirements
shall be deemed satisfied by a stockholder if the stockholder
has notified the Corporation of his or her intention to
present a proposal at an annual meeting in compliance with
Rule 14a-8 (or any successor thereof) promulgated under the
Exchange Act and such stockholder's proposal has been included
in a proxy statement that has been prepared by the Corporation
to solicit proxies for such annual meeting. The Corporation
may require any proposed nominee to furnish such other
information as it may reasonably require to determine the
eligibility of such proposed nominee to serve as a director of
the Corporation.
(3) Notwithstanding anything in the second sentence
of paragraph (A)(2) of this Section 2.12 to the contrary, in
the event that the number of directors to be elected to the
Board of Directors of the Corporation at an annual meeting is
increased and there is no public announcement by the
Corporation naming the nominees for the additional
directorships at least one hundred days prior to the first
anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Section 2.12 shall also
be considered timely, but only with respect to nominees for
the additional directorships, if it shall be delivered to the
Secretary at the principal executive offices of the
Corporation not later than the close of business on the tenth
day following the day on which such public announcement is
first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall
be conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the Corporation's notice of
meeting. Nominations of persons for election to the Board of Directors
may be made at a special meeting of stockholders
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at which directors are to be elected pursuant to the Corporation's
notice of meeting (1) by or at the direction of the Board of Directors
or (2) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time the notice
provided for in this Section 2.12 is delivered to the Secretary of the
Corporation, who is entitled to vote at the meeting and upon such
election and who complies with the notice procedures set forth in this
Section 2.12. In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the
Board of Directors, any such stockholder entitled to vote in such
election of directors may nominate a person or persons (as the case may
be) for election to such position(s) as specified in the Corporation's
notice of meeting, if the stockholder's notice required by paragraph
(A)(2) of this Section 2.12 shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the
close of business on the one hundred twentieth day prior to such
special meeting and not later than the close of business on the later
of the ninetieth day prior to such special meeting or the tenth day
following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board
of Directors to be elected at such meeting. In no event shall the
public announcement of an adjournment or postponement of a special
meeting commence a new time period (or extend any time period) for the
giving of a stockholder's notice as described above.
(c) General.
(1) Only such persons who are nominated in accordance
with the procedures set forth in this Section 2.12 shall be
eligible to be elected at an annual or special meeting of
stockholders of the Corporation to serve as directors and only
such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance
with the procedures set forth in this Section 2.12. Except as
otherwise provided by law, the chairman of the meeting shall
have the power and duty (a) to determine whether a nomination
or any business proposed to be brought before the meeting was
made or proposed, as the case may be, in accordance with the
procedures set forth in this Section 2.12 (including whether
the stockholder or beneficial owner, if any, on whose behalf
the nomination or proposal is made solicited (or is part of a
group which solicited) or did not so solicit, as the case may
be, proxies in support of such stockholder's nominee or
proposal in compliance with such stockholder's representation
as required by clause (A)(2)(c)(iv) of this Section 2.12) and
(b) if any proposed nomination or business was not made or
proposed in compliance with this Section 2.12, to declare that
such nomination shall be disregarded or that such proposed
business shall not be transacted. Notwithstanding the
foregoing
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provisions of this Section 2.12, if the stockholder (or a
qualified representative of the stockholder) does not appear
at the annual or special meeting of stockholders of the
Corporation to present a nomination or business, such
nomination shall be disregarded and such proposed business
shall not be transacted, notwithstanding that proxies in
respect of such vote may have been received by the
Corporation.
(2) For purposes of this Section 2.12, "public
announcement" shall include disclosure in a press release
reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange
Act.
(3) Notwithstanding the foregoing provisions of this
Section 2.12, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth
in this Section 2.12. Nothing in this Section 2.12 shall be
deemed to affect any rights (a) of stockholders to request
inclusion of proposals in the Corporation's proxy statement
pursuant to Rule 14a-8 under the Exchange Act or (b) of the
holders of any series of Preferred Stock to elect directors
pursuant to any applicable provisions of the Restated
Certificate of Incorporation.
SECTION 2.13 INSPECTORS OF ELECTION. Before any meeting of
stockholders, the Board of Directors may, and if required by law shall, appoint
one or more persons to act as inspectors of election as such meeting or any
adjournment thereof. If any person appointed as inspector fails to appear or
fails or refuses to act, the chairman of the meeting may, and if required by law
or requested by any stockholder entitled to vote or his proxy shall, appoint a
substitute inspector. If no inspectors are appointed by the Board of Directors,
the chairman of the meeting may, and if required by law or requested by any
stockholder entitled to vote or his proxy shall, appoint one or more inspectors
at the meeting. Notwithstanding the foregoing, inspectors shall be appointed
consistent with Section 231 of the DGCL. Inspectors may include individuals who
serve the Corporation in other capacities (including as officers, employees,
agents or representatives); PROVIDED, HOWEVER, that no Director or candidate for
the office of Director shall act as an inspector. Inspectors need not be
stockholders. The inspectors shall (i) determine the number of shares of capital
stock of the Corporation outstanding and the voting power of each, the number of
shares represented at the meeting, and the validity and effect of proxies and
(ii) receive votes or ballots, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes and
ballots, determine the results and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. On request of the chairman
of the meeting, the inspectors shall make a report in writing of any challenge,
request or matter determined by them and shall execute a
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certificate of any fact found by them. The inspectors shall have such other
duties as may be prescribed by Section 231 of the DGCL.
SECTION 2.14 POSTPONEMENT AND CANCELLATION OF MEETING. Any previously
scheduled annual or special meeting of the stockholders may be postponed, and
any previously scheduled annual or special meeting of the stockholders called by
the Board may be canceled, by resolution of the Board upon public notice given
prior to the time previously scheduled for such meeting of stockholders.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1 MANAGEMENT. The business and affairs of the Corporation
will be managed by or under the direction of its Board of Directors who may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law, by the Certificate of Incorporation or by these Bylaws
directed or required to be exercised or done by the stockholders.
SECTION 3.2 QUALIFICATION; ELECTION; TERM. None of the Directors need
be a stockholder of the Corporation or a resident of the State of Delaware.
Directors shall be elected at the annual meeting of the stockholders and each
director shall be elected to serve until his successor shall be elected and
shall qualify. Directors shall be elected by a plurality of the votes of the
shares present in person or represented by proxy and entitled to vote on the
election of Directors at any annual or special meeting of stockholders.
SECTION 3.3 NUMBER. The number of Directors of the Corporation will be
at least one and not more than nineteen; provided that, effective upon
consummation of the Corporation's initial public offering of Common Stock, so
long as any shares of Limited Vote Common Stock (as such term is defined in the
Certificate of Incorporation) are outstanding, the number of Directors shall not
be less than five. The number of Directors authorized will be fixed as the Board
of Directors may from time to time designate.
SECTION 3.4 REMOVAL. Any Director may be removed, only for cause, at
any special meeting of stockholders by the affirmative vote of the holders of a
majority in number of all outstanding voting stock entitled to vote; provided
that notice of the intention to act upon such matter has been given in the
notice calling such meeting.
SECTION 3.5 VACANCIES. Newly created directorships resulting from any
increase in the authorized number of Directors and any vacancies occurring in
the Board of Directors caused by death, resignation, retirement,
disqualification or removal from office of any Directors or otherwise, may be
filled by the vote of a majority of the Directors then in office, though less
than a quorum, or a successor or successors may be chosen at a special meeting
of the stockholders called for that purpose, and each successor Director so
chosen will hold office until whichever of the following occurs first: his
successor is elected and qualified, his resignation, his removal from office by
the stockholders or his death.
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SECTION 3.6 PLACE OF MEETINGS. Meetings of the Board of Directors,
regular or special, may be held at such place within or without the State of
Delaware as may be fixed from time to time by the Board of Directors.
SECTION 3.7 ANNUAL MEETING. The annual meeting of each newly elected
Board may be held at a time convenient to the Board. The annual meeting may be
held immediately following the annual meeting of stockholders, and if so held,
no notice of such meeting shall be necessary to the newly elected directors in
order to constitute the meeting legally, provided a quorum shall be present.
SECTION 3.8 REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice at such time and place as is from time to
time determined by resolution of the Board of Directors.
SECTION 3.9 SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board, or the Chief Executive
Officer or by any two members of the Board of Directors. Notice of a special
meeting of the Board of Directors shall be delivered to each member of the Board
by the person or persons calling the meeting, at least twenty-four hours before
the special meeting. The purpose or purposes of any special meeting will be
specified in the notice relating thereto.
SECTION 3.10 QUORUM. At all meetings of the Board of Directors the
presence of a majority of the number of Directors fixed by these Bylaws will be
necessary and sufficient to constitute a quorum for the transaction of business,
and the affirmative vote of at least a majority of the Directors present at any
meeting at which there is a quorum will be the act of the Board of Directors,
except as may be otherwise specifically provided by law, the Certificate of
Incorporation or these Bylaws. If a quorum is not 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 is present.
SECTION 3.11 COMMITTEES. The Board of Directors may designate
committees, each committee to consist of one or more Directors of the
Corporation. Any such committee, to the extent permitted by law and 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. Such committee or
committees will have such name or names as may be designated by the Board and
will keep regular minutes of their proceedings and report the same to the Board
of Directors when required. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member of the committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or disqualified
member.
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SECTION 3.12 ACTION BY CONSENT. Any action required or permitted to be
taken at any meeting of the Board of Directors or any committee of the Board of
Directors may be taken without such a meeting if all the members of the Board of
Directors or such committee consent thereto in writing or by electronic
transmission, as the case may be.
SECTION 3.13 COMPENSATION OF DIRECTORS. Directors will receive such
compensation for their services and reimbursement for their expenses as the
Board of Directors, by resolution, may establish; provided that nothing herein
contained will be construed to preclude any Director from serving the
Corporation in any other capacity and receiving compensation therefor.
SECTION 3.14 CONDUCT OF MEETINGS. At each meeting of the Board, the
Chairman, or in the absence of the Chairman the Vice Chairman, or in the absence
of the Vice Chairman a chairman chosen by a majority of the Directors present,
shall preside.
ARTICLE IV
NOTICE
SECTION 4.1 FORM OF NOTICE. Whenever by law, the Certificate of
Incorporation or these Bylaws, notice is to be given to any Director or
stockholder, and no provision is made as to how such notice will be given, such
notice may be given in writing, by mail, postage prepaid, addressed to such
Director or stockholder at such address as appears on the books of the
Corporation. Any notice required or permitted to be given by mail will be deemed
to be given at the time the same is deposited in the United States mails. Notice
to stockholders may be given by a form of electronic transmission if consented
to by the stockholders to whom the notice is given. Notice to directors may be
given by telegram, telecopier, telephone or other means of electronic
transmission.
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SECTION 4.2 WAIVER. Whenever any notice is required to be given to any
stockholder or Director of the Corporation as required by law, the Certificate
of Incorporation or these Bylaws, a waiver thereof in writing signed by the
person or persons entitled to such notice or a waiver of notice by electronic
transmission, whether before or after the time stated in such notice, will be
equivalent to the giving of such notice. Attendance of a stockholder or Director
at a meeting will constitute a waiver of notice of such meeting, except where
such a stockholder or Director attends for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business on the ground
that the meeting has not been lawfully called or convened.
ARTICLE V
OFFICERS AND AGENTS
SECTION 5.1 IN GENERAL. The officers of the Corporation will consist of
a Chief Executive Officer, Chief Financial Officer and Secretary and such other
officers as shall be elected by the Board of Directors or appointed by the Chief
Executive Officer (except the Board of Directors alone shall have authority to
elect a Chief Executive Officer or President). Any two or more offices may be
held by the same person.
SECTION 5.2 ELECTION. The Board of Directors, at its first meeting
after each annual meeting of stockholders, will elect the officers, none of whom
need be a member of the Board of Directors.
SECTION 5.3 OTHER OFFICERS AND AGENTS. Except as set forth in Section
5.1 hereof, the Board of Directors and Chief Executive Officer may also elect
and appoint such other officers and agents as it or he deems necessary, who will
be elected and appointed for such terms and will exercise such powers and
perform such duties as may be determined from time to time by the Board or the
Chief Executive Officer.
SECTION 5.4 COMPENSATION. The compensation of all officers and agents
of the Corporation will be fixed by the Board of Directors or any committee of
the Board, if so authorized by the Board.
SECTION 5.5 TERM OF OFFICE AND REMOVAL. Each officer of the Corporation
will hold office until his death, his resignation or removal from office, or the
election and qualification of his successor, whichever occurs first. Any officer
or agent elected or appointed by the Board of Directors or the Chief Executive
Officer may be removed at any time, for or without cause, by the affirmative
vote of a majority of the entire Board of Directors or at the discretion of the
Chief Executive Officer (without regard to how the agent or officer was
elected), but such removal will not prejudice the contract rights, if any, of
the person so removed. If the office of any officer becomes vacant for any
reason, the vacancy may be filled by the Board of Directors or, in the case of a
vacancy in the office of officer other than Chief Executive Officer and Chief
Operating Officer, such vacancy may be filled by the Chief Executive Officer.
SECTION 5.6 EMPLOYMENT AND OTHER CONTRACTS. The Board of Directors may
authorize any officer or officers or agent or agents to enter into any contract
or execute and deliver any instrument in the name or on behalf of the
Corporation, and such authority may be general or confined to
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specific instances. The Board of Directors may, when it believes the interest of
the Corporation will best be served thereby, authorize executive employment
contracts that will have terms no longer than ten years and contain such other
terms and conditions as the Board of Directors deems appropriate. Nothing herein
will limit the authority of the Board of Directors to authorize employment
contracts for shorter terms.
SECTION 5.7 CHAIRMAN OF THE BOARD OF DIRECTORS. If the Board of
Directors has elected a Chairman of the Board, he will preside at all meetings
of the stockholders and the Board of Directors. In addition, the Chairman of the
Board shall perform whatever duties and shall exercise all powers that are given
to him by the Board of Directors.
SECTION 5.8 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer will
be the chief executive officer of the Corporation and, subject to the control of
the Board of Directors, will supervise and control all of the business and
affairs of the Corporation. The Chief Executive Officer shall have the authority
to elect any officer of the Corporation other than the Chief Executive Officer
or President. He will, in the absence of the Chairman of the Board, preside at
all meetings of the stockholders and the Board of Directors. The Chief Executive
Officer will have all powers and perform all duties incident to the office of
Chief Executive Officer and will have such other powers and perform such other
duties as the Board of Directors may from time to time prescribe. During the
absence or disability of the President, or if no President shall be elected, the
Chief Executive Officer will exercise the powers and perform the duties of
President, including, without limitation, execution of certificates representing
shares of stock of the Corporation.
SECTION 5.9 CHIEF OPERATING OFFICER. The Chief Operating Officer, if
one shall be elected, will have responsibility for oversight of the
Corporation's operating and development activities. In the absence or disability
of the Chief Executive Officer and the Chairman of the Board, the Chief
Operating Officer will exercise the powers and perform the duties of the Chief
Executive Officer. The Chief Operating Officer will render to the Directors
whenever they may require it an account of the operating and development
activities of the Corporation and will have such other powers and perform such
other duties as the Board of Directors may from time to time prescribe or as the
Chief Executive Officer may from time to time delegate to him.
SECTION 5.10 CHIEF FINANCIAL OFFICER. The Chief Financial Officer will
have principal responsibility for the financial operations of the Corporation.
The Chief Financial Officer will render to the Directors whenever they may
require it an account of the operating results and financial condition of the
Corporation and will have such other powers and perform such other duties as the
Board of Directors may from time to time prescribe or as the Chief Executive
Officer may from time to time delegate to him.
SECTION 5.11 SECRETARY. The Secretary will attend all meetings of the
stockholders and record all votes and the minutes of all proceedings in a book
to be kept for that purpose. The Secretary will perform like duties for the
Board of Directors and committees thereof when required. The Secretary will
give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors. The Secretary will keep in safe
custody the seal of the
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Corporation. The Secretary will be under the supervision of the Chief Executive
Officer. The Secretary will have such other powers and perform such other duties
as the Board of Directors may from time to time prescribe or as the Chief
Executive Officer may from time to time delegate to him.
SECTION 5.12 BONDING. The Corporation may secure a bond to protect the
Corporation from loss in the event of defalcation by any of the officers, which
bond may be in such form and amount and with such surety as the Board of
Directors may deem appropriate.
ARTICLE VI
CERTIFICATES REPRESENTING SHARES
SECTION 6.1 FORM OF CERTIFICATES. Certificates, in such form as may be
determined by the Board of Directors, representing shares to which stockholders
are entitled will be delivered to each stockholder. Such certificates will be
consecutively numbered and will be entered in the stock book of the Corporation
as they are issued. Each certificate will state on the face thereof the holder's
name, the number, class of shares, and the par value of such shares or a
statement that such shares are without par value. They will be signed by the
Chief Executive Officer, acting in his capacity as President of the Company, or
by the President, if one shall be elected, or any Vice President and the
Secretary or an Assistant Secretary, and may be sealed with the seal of the
Corporation or a facsimile thereof. If any certificate is countersigned by a
transfer agent, or an assistant transfer agent or registered by a registrar,
either of which is other than the Corporation or an employee of the Corporation,
the signatures of the Corporation's officers may be facsimiles. In case any
officer or officers who have signed, or whose facsimile signature or signatures
have been used on such certificate or certificates, ceases to be such officer or
officers of the Corporation, whether because of death, resignation or otherwise,
before such certificate or certificates have been delivered by the Corporation
or its agents, such certificate or certificates may nevertheless be adopted by
the Corporation and be issued and delivered as though the person or persons who
signed such certificate or certificates or whose facsimile signature or
signatures have been used thereon had not ceased to be such officer or officers
of the Corporation.
SECTION 6.2 LOST CERTIFICATES. The Board of Directors may direct that a
new certificate be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate to be lost or
destroyed. When authorizing such issue of a new certificate, the Board of
Directors, in its discretion and as a condition precedent to the issuance
thereof, may require the owner of such lost or destroyed certificate, or his
legal representative, to advertise the same in such manner as it may require
and/or to give the Corporation a bond, in such form, in such sum, and with such
surety or sureties as it may direct as indemnity against any claim that may be
made against the Corporation with respect to the certificate alleged to have
been lost or destroyed. When a certificate has been lost, apparently destroyed
or wrongfully taken, and the holder of record fails to notify the Corporation
within a reasonable time after such holder has notice of it, and the Corporation
registers a transfer of the shares represented by the certificate before
receiving such notification, the holder of record is precluded from making any
claim against the Corporation for the transfer of a new certificate.
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SECTION 6.3 TRANSFER OF SHARES. Shares of stock will be transferable
only on the books of the Corporation by the holder thereof in person or by such
holder's duly authorized attorney. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate representing shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it will be the duty of the Corporation or the transfer
agent of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
SECTION 6.4 REGISTERED STOCKHOLDERS. The Corporation will be entitled
to treat the holder of record of any share or shares of stock as the holder in
fact thereof and, accordingly, will not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it has express or other notice thereof, except as
otherwise provided by law.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) The Corporation (i) shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or
in the right of the Corporation) by reason of the fact that such person
is or was, at any time prior to or during which this Article VII is in
effect, a director of or officer of the Corporation, or, while a
director or officer of the Corporation, is or was, at any time prior to
or during which this Article VII is in effect, serving at the request
of the Corporation as a director, or officer, employee or agent of
another corporation, partnership, joint venture, trust, other
enterprises or employee benefit plan and (ii) upon a determination by
the Board of Directors that indemnification is appropriate, the
Corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Corporation) by reason of the fact that such person is or was, at any
time prior to or during which this Article VII is in effect, an
employee or agent of the Corporation or, while an employee or agent of
the Corporation, at the request of the Corporation was serving as an a
director, officer, employee or agent of any other corporation,
partnership, joint venture, trust, other enterprise or employee benefit
plan, in the case of (i) and (ii) against reasonable expenses
(including attorneys' fees), judgments, fines, penalties, amounts paid
in settlement and other liabilities actually and reasonably incurred by
such person in connection with such action, suit or proceeding if such
person 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 that his conduct was unlawful. The termination of any
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action, suit or proceeding by judgment, order, settlement, conviction
or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that such person did not act in good faith
and in a manner which 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 reasonable cause to believe that his
conduct was unlawful.
(b) The Corporation (i) shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact
that such person is or was, at any time prior to or during which this
Article VII is in effect, a director or officer of the Corporation, or
while a director or officer of the Corporation, is or was, at any time
prior to or during which this Article VII is in effect, serving at the
request of the Corporation as a director, or officer, employee or agent
of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise and (ii) upon a determination by the
Board of Directors that indemnification is appropriate, the Corporation
may indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by
or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that such person is or was, at any time prior to
or during which this Article VII is in effect, an employee or agent of
the Corporation or while an employee or agent of the Corporation at the
request of the Corporation was serving as an a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, in the case of (i)
and (ii) against expenses (including attorneys' fees), actually and
reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation; provided, that no indemnification
shall be made under this subsection (b) in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable
to the Corporation unless and only to the extent that the Delaware
Court of Chancery, or other court of appropriate jurisdiction, shall
determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity of such expenses which the
Delaware Court of Chancery, or other court of appropriate jurisdiction,
shall deem proper.
(c) Any indemnification under subsections (a) and (b) (unless
ordered by the Delaware Court of Chancery or other court of appropriate
jurisdiction) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of such
person is proper in the circumstances because he has met the applicable
standard of conduct set forth in subsections (a) and (b). Such
determination shall be made (1) by a majority vote of directors who are
not parties to such action, suit or proceeding, even though less than a
quorum; or (2) by a
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committee of such directors designated by majority vote of such
directors, even though less than a quorum; or (3) if there are no such
directors, or if such directors so direct, by independent legal
counsel, in written opinion; or (4) by the stockholders. In the event a
determination is made under this subsection (c) that the director,
officer, employee or agent has met the applicable standard of conduct
as to some matters but not as to others, amounts to be indemnified may
be reasonably prorated.
(d) Expenses incurred by a person who is or was a director or
officer of the Corporation in appearing at, participating in or
defending any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative,
shall be paid by the Corporation at reasonable intervals in advance of
the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of the director or officer to repay
such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized by this
Article VII. In addition, the Corporation shall pay or reimburse
expenses incurred by any person who is or was a director or officer of
the Corporation in connection with such person's appearance as a
witness or other participant in a proceeding in which such person or
the Corporation is not a named party to such proceeding, provided that
such appearance or participation is on behalf of the Corporation or by
reason of his capacity as a director or officer, or former director or
officer of the Corporation.
(e) If in a suit or proceeding for indemnification required
under this Article VII of a director or officer, or former director or
officer, of the Corporation of any of its affiliates, a court of
competent jurisdiction determines that such person is entitled to
indemnification under this Article VII, the court shall award, and the
Corporation shall pay, to such person the expenses incurred in securing
such judicial determination.
(f) It is the intention of the Corporation to indemnify the
persons referred to in this Article VII to the fullest extent permitted
by law and with respect to any action, suit or proceeding arising from
events which occur at any time prior to or during which this Article
VII is in effect. The indemnification and advancement of expenses
provided by this Article VII shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of
expenses may be or become entitled under any law, the Certificate of
Incorporation, these Bylaws, agreement, the vote of stockholders or
disinterested directors or otherwise, or under any policy or policies
of insurance purchased and maintained by the Corporation on behalf of
any such person, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
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(g) Notwithstanding the foregoing, but subject to the
immediately succeeding sentence, the Corporation shall be required to
indemnify a person in connection with an action, suit or proceeding (or
part thereof) commenced by such person only if the commencement of such
action, suit or proceeding (or part thereof) by the person was
authorized by the Board. If a claim for indemnification or advancement
of expenses under this Article VII is not paid in full within thirty
(30) days after a written claim therefor by the person seeking
indemnification or reimbursement or advancement of expenses has been
received by the Corporation, the person may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In
any such action the Corporation shall have the burden of proving that
the person seeking indemnification or reimbursement or advancement of
expenses is not entitled to the requested indemnification,
reimbursement or advancement of expenses under applicable law.
(h) The Corporation's obligation, if any, to indemnify or to
advance expenses to any person who was serving at its request as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit entity shall
be reduced by any amount such person may collect as indemnification or
advancement of expenses from such other corporation, partnership, joint
venture, trust, enterprise or non-profit enterprise.
(i) The indemnification provided by this Article VII shall be
subject to all valid and applicable laws, and, in the event this
Article VII or any other provisions hereof or the indemnification
contemplated hereby are found to be inconsistent with or contrary to
any such valid laws, the latter shall be deemed to control and this
Article VII shall be regarded as modified accordingly, and, as so
modified, to continue in full force and effect.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.1 DIVIDENDS. Dividends upon the outstanding shares of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting. Dividends may be declared and paid in cash, in property, or in shares
of the Corporation, subject to the provisions of the General Corporation Law of
the State of Delaware and the Certificate of Incorporation. The Board of
Directors may fix in advance a record date for the purpose of determining
stockholders entitled to receive payment of any dividend, such record date will
not precede the date upon which the resolution fixing the record date is
adopted, and such record date will not be more than sixty days prior to the
payment date of such dividend. In the absence of any action by the Board of
Directors, the close of business on the date upon which the Board of Directors
adopts the resolution declaring such dividend will be the record date.
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SECTION 8.2 RESERVES. There may be created by resolution of the Board
of Directors out of the surplus of the Corporation such reserve or reserves as
the Directors from time to time, in their discretion, deem proper to provide for
contingencies, or to equalize dividends, or to repair or maintain any property
of the Corporation, or for such other purpose as the Directors may deem
beneficial to the Corporation, and the Directors may modify or abolish any such
reserve in the manner in which it was created. Surplus of the Corporation to the
extent so reserved will not be available for the payment of dividends or other
distributions by the Corporation.
SECTION 8.3 TELEPHONE AND SIMILAR MEETINGS. Directors and committee
members may participate in and hold meetings by means of conference telephone or
other communications equipment by which all persons participating in the meeting
can hear each other. Participation in such a meeting will constitute presence in
person at the meeting, except where a person participates in the meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the ground that the meeting has not been lawfully
called or convened.
SECTION 8.4 BOOKS AND RECORDS. The Corporation will keep correct and
complete books and records of account and minutes of the proceedings of its
stockholders and Board of Directors, and will keep at its registered office or
principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
SECTION 8.5 FISCAL YEAR. The fiscal year of the Corporation will be
fixed by resolution of the Board of Directors.
SECTION 8.6 SEAL. The Corporation may have a seal, and the seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise. Any officer of the Corporation will have authority to
affix the seal to any document requiring it.
SECTION 8.7 INSURANCE. The Corporation may at the discretion of the
Board of Directors purchase and maintain insurance on behalf of the Corporation
and any person whom it has the power to indemnify pursuant to law, the
Certificate of Incorporation, these Bylaws or otherwise.
SECTION 8.8 RESIGNATION. Any director, officer or agent may resign by
giving written notice to the President or the Secretary. Such resignation will
take effect at the time specified therein or immediately if no time is specified
therein. Unless otherwise specified therein, the acceptance of such resignation
will not be necessary to make it effective.
SECTION 8.9 AMENDMENT OF BYLAWS. These Bylaws may be altered, amended,
or repealed at any meeting of the Board of Directors at which a quorum is
present, by the affirmative vote of a majority of the Directors present at such
meeting.
SECTION 8.10 INVALID PROVISIONS. If any part of these Bylaws is held
invalid or inoperative for any reason, the remaining parts, so far as possible
and reasonable, will be valid and operative.
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SECTION 8.11 RELATION TO THE CERTIFICATE OF INCORPORATION. These Bylaws
are subject to, and governed by, the Certificate of Incorporation of the
Corporation as amended from time to time.
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