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EXHIBIT 3.2
AMENDED BYLAWS
OF
PALM, INC.
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TABLE OF CONTENTS
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ARTICLE I - CORPORATE OFFICES............................................................................1
1.1 Registered Office......................................................................1
1.2 Other Offices..........................................................................1
ARTICLE II - MEETINGS OF STOCKHOLDERS....................................................................1
2.1 Place of Meetings......................................................................1
2.2 Annual Meeting.........................................................................1
2.3 Special Meeting........................................................................3
2.4 Organization...........................................................................3
2.5 Notice of Stockholders' Meetings.......................................................3
2.6 Manner of Giving Notice; Affidavit of Notice...........................................4
2.7 Quorum.................................................................................4
2.8 Adjourned Meeting; Notice..............................................................4
2.9 Voting.................................................................................5
2.10 Validation of Meetings; Waiver of Notice; Consent......................................5
2.11 No Stockholder Action by Written Consent...............................................5
2.12 Record Date for Stockholder Notice; Voting; Giving Consents............................6
2.13 Proxies................................................................................6
2.14 Inspectors of Election.................................................................6
ARTICLE III - DIRECTORS..................................................................................7
3.1 Powers.................................................................................7
3.2 Number.................................................................................7
3.3 Election and Term of Office of Directors...............................................8
3.4 Resignation and Vacancies..............................................................8
3.5 Removal................................................................................9
3.6 Place of Meetings; Meetings by Telephone...............................................9
3.7 Regular Meetings.......................................................................9
3.8 Special Meetings; Notice...............................................................9
3.9 Quorum................................................................................10
3.10 Waiver of Notice......................................................................10
3.11 Adjournment...........................................................................10
3.12 Notice of Adjournment.................................................................10
3.13 Board Action by Written Consent Without a Meeting.....................................10
3.14 Organization..........................................................................11
3.15 Fees and Compensation of Directors....................................................11
ARTICLE IV - COMMITTEES.................................................................................11
4.1 Committees of Directors...............................................................11
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4.2 Meetings and Action of Committees.....................................................11
4.3 Committee Minutes.....................................................................11
4.4 Executive Committee...................................................................12
ARTICLE V - OFFICERS....................................................................................12
5.1 Officers..............................................................................12
5.2 Election of Officers..................................................................12
5.3 Terms of Office and Compensation......................................................12
5.4 Removal; Resignation of Officers and Vacancies........................................12
5.5 Chairman of the Board.................................................................13
5.6 Vice Chairman of the Board............................................................13
5.7 Chairman of Executive Committee.......................................................13
5.8 President.............................................................................13
5.9 Vice Presidents.......................................................................13
5.10 Secretary.............................................................................13
5.11 Chief Financial Officer...............................................................14
ARTICLE VI - INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS.........................15
6.1 Indemnification of Directors and Officers.............................................15
6.2 Indemnification of Others.............................................................15
6.3 Insurance.............................................................................16
6.4 Expenses..............................................................................16
6.5 Non-Exclusivity of Rights.............................................................16
6.6 Survival of Rights....................................................................17
6.7 Amendments............................................................................17
ARTICLE VII - RECORDS AND REPORTS.......................................................................17
7.1 Maintenance and Inspection of Records.................................................17
7.2 Inspection by Director................................................................17
7.3 Representation of Shares of Other Corporations........................................17
ARTICLE VIII - GENERAL MATTERS..........................................................................18
8.1 Record Date for Purposes Other than Notice and Voting.................................18
8.2 Checks; Drafts; Evidences of Indebtedness.............................................18
8.3 Corporate Contracts and Instruments; How Executed.....................................18
8.4 Fiscal Year...........................................................................18
8.5 Stock Certificates....................................................................18
8.6 Special Designation on Certificates...................................................19
8.7 Lost Certificates.....................................................................19
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8.8 Construction; Definitions.............................................................19
8.9 Provisions Additional to Provisions of Law............................................19
8.10 Provisions Contrary to Provisions of Law..............................................19
8.11 Notices...............................................................................20
ARTICLE IX - AMENDMENTS.................................................................................20
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AMENDED BYLAWS
OF
PALM, INC.
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE
The registered office of the corporation shall be fixed in the
Certificate of Incorporation of the corporation.
1.2 OTHER OFFICES
The board of directors may at any time establish branch or
subordinate offices at any place or places where the corporation is qualified to
do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS
Meetings of stockholders shall be held at any place within or outside
the State of Delaware designated by the board of directors. In the absence of
any such designation, stockholders' meetings shall be held at the registered
office of the corporation.
2.2 ANNUAL MEETING
(a) The annual meeting of stockholders shall be held each year on a
date and at a time designated by the board of directors. At the
meeting, directors shall be elected, and any other proper
business may be transacted.
(b) At an annual meeting of the stockholders, only such business
shall be conducted as shall have been properly brought before
the meeting. To be properly brought before an annual 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) otherwise properly brought before the meeting by
or at the direction of the board of directors, or (C) otherwise
properly brought before the meeting by a stockholder.
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For nominations or other business to be properly brought before
a stockholders meeting by a stockholder pursuant to clause (C)
of the preceding sentence, the stockholder must have given
timely notice thereof in writing to the Secretary of the
corporation and such other business must otherwise be 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 less than ninety (90)
calendar days in advance of the first anniversary of the
preceding year's annual meeting; provided, however, that in the
event that (i) no annual meeting was held in the previous year
or (ii) the date of the annual meeting has been changed by more
than thirty (30) days from the date of the previous year's
meeting, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the later
of: (i) the day ninety (90) calendar days in advance of such
meeting or (ii) the day ten (10) calendar days following the day
on which public announcement of the date of the meeting is first
made. In no event shall the public announcement of an
adjournment of a stockholders meeting commence a new time period
for the giving of a stockholder's notice as described above. A
stockholder's notice to the secretary shall set forth as to each
matter the stockholder proposes to bring before the annual
meeting: (a) a brief description of the business desired to be
brought before the meeting, (b) the name and address, as they
appear on the corporation's books, of the stockholder proposing
such business, (c) the class number of shares of the corporation
which are owned beneficially by such stockholder, (d) any
material interest of the stockholder in such business, and (e)
any other information that is required to be provided by the
stockholder pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "1934 Act") (or any
successor thereto) in such stockholder's capacity as a proponent
of a stockholder proposal. Notwithstanding anything in these
Bylaws to the contrary, no business shall be conducted at any
annual meeting except in accordance with the procedures set
forth in this paragraph (b). The chairman of the annual meeting
shall, if the facts warrant, determine and declare at the
meeting that business was not properly brought before the
meeting and in accordance with the provisions of this paragraph
(b), and, if he should so determine, he shall so declare at the
meeting that any such business not properly brought before the
meeting shall not be transacted.
(c) Only persons who are nominated in accordance with the procedures
set forth in this paragraph (c) shall be eligible for election
as directors. Nominations of persons for election to the board
of directors of the corporation may be made at a meeting of
stockholders by or at the direction of the board of directors or
by any stockholder of the corporation entitled to vote in the
election of directors at the meeting who complies with the
notice procedures set forth in this paragraph (c). Such
nominations, other than those made by or at the direction of the
board of directors, shall be made pursuant to timely notice in
writing to the secretary of the corporation in accordance with
the provisions of paragraph (b) of this Section 2.2. Such
stockholder's notice shall set forth (i) as to each person, if
any, whom the stockholder proposes to nominate for election or
re-election as a director: (A) the name, age, business address
and residence address of such person, (B) the principal
occupation or employment of such person, (C) the class and
number of shares of the corporation which are
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beneficially owned by such person, (D) a description of all
arrangements or understandings between the stockholder and each
nominee and any other person or persons (naming such person or
persons) pursuant to which the nominations are to be made by the
stockholder, and (E) any other information relating to such
person that is required to be disclosed in solicitations of
proxies for elections of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the 1934 Act (or any
successor thereto) (including without limitation such person's
written consent to being named in the proxy statement, if any,
as a nominee and to serving as a director if elected); and (ii)
as to such stockholder giving notice, the information required
to be provided pursuant to paragraph (b) of this Section 2.2. At
the request of the board of directors, any person nominated by a
stockholder for election as a director shall furnish to the
secretary of the corporation that information required to be set
forth in the stockholder's notice of nomination which pertains
to the nominee. No person shall be eligible for election as a
director of the corporation unless nominated in accordance with
the procedures set forth in this paragraph (c). The chairman of
the meeting shall, if the facts warrant, determine and declare
at the meeting that a nomination was not made in accordance with
the procedures prescribed by these Bylaws, and if he should so
determine, he shall so declare at the meeting, and the defective
nomination shall be disregarded.
2.3 SPECIAL MEETING
A special meeting of the stockholders may be called at any time by
the board of directors or the chairman of the board. In addition, prior to the
Trigger Date (as defined in the Certificate of Incorporation), the corporation
will call a special meeting of stockholders promptly upon request by 3Com
Corporation, a Delaware corporation, so long as such entity is a stockholder of
the corporation. Special meetings of the stockholders may not be called by any
other person or persons. Only such business shall be considered at a special
meeting of stockholders as shall have been stated in the notice for such
meeting.
2.4 ORGANIZATION
Meetings of stockholders shall be presided over by the chairman of
the board, if any, or in his or her absence by the vice chairman of the
board, if any, or in his or her absence, or in the absence of the foregoing
persons by a chairman of the meeting, which chairman must be an officer or
director of the Company, designated by the board of directors. The secretary
or in his or her absence an assistant secretary or in the absence of the
secretary and all assistant secretaries a person whom the chairman of the
meeting shall appoint shall act as secretary of the meeting and keep a record
of the proceedings thereof.
The board of directors of the corporation shall be entitled to make
such rules or regulations for the conduct of meetings of stockholders as it
shall deem necessary, appropriate or convenient. Subject to such rules and
regulations of the board of directors, if any, the chairman of the meeting shall
have the right and authority to prescribe such rules, regulations and procedures
and to do all such acts as, in the judgment of such chairman, are necessary,
appropriate or convenient for the proper conduct of the meeting, including,
without limitation, establishing an agenda or order of
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business for the meeting, rules and procedures for maintaining order at the
meeting and the safety of those present, limitations on participation in such
meeting to stockholders of record of the corporation and their duly authorized
and constituted proxies, and such other persons as the chairman shall permit,
restrictions on entry to the meeting after the time fixed for the commencement
thereof, limitations on the time allotted to questions or comments by
participants and regulation of the opening and closing of the polls for
balloting and matters which are to be voted on by ballot. Unless and to the
extent determined by the board of directors or the chairman of the meeting,
meetings of stockholders shall not be required to be held in accordance with
rules of parliamentary procedure.
2.5 NOTICE OF STOCKHOLDERS' MEETINGS
All notices of meetings of stockholders shall be sent or otherwise
given in accordance with Section 2.6 of these Bylaws not less than ten (10) nor
more than sixty (60) days before the date of the meeting. The notice shall
specify the place, date, and hour of the meeting and (i) in the case of a
special meeting, the purpose or purposes for which the meeting is called (no
business other than that specified in the notice may be transacted) or (ii) in
the case of the annual meeting, those matters which the board of directors, at
the time of giving the notice, intends to present for action by the stockholders
(but any proper matter may be presented at the meeting for such action). The
notice of any meeting at which directors are to be elected shall include the
name of any nominee or nominees who, at the time of the notice, the board
intends to present for election.
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Notice of any meeting of stockholders shall be given either
personally or by mail, telecopy, telegram or other electronic or wireless means.
Notices not personally delivered shall be sent charges prepaid and shall be
addressed to the stockholder at the address of that stockholder appearing on the
books of the corporation or given by the stockholder to the corporation for the
purpose of notice. Notice shall be deemed to have been given at the time when
delivered personally or deposited in the mail or at the time of transmission
when sent by telecopy, telegram or other electronic or wireless means.
An affidavit of the mailing or other means of giving any notice of
any stockholders' meeting, executed by the secretary, assistant secretary or any
transfer agent of the corporation giving the notice, shall be prima facie
evidence of the giving of such notice or report.
2.7 QUORUM
The holders of a majority in voting power 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 is not present or
represented at any meeting of the stockholders, then either (i) the chairman of
the meeting or (ii) the stockholders by the vote of the holders of a majority of
the stock, present in person or represented by proxy shall have power to adjourn
the meeting in accordance with Section 2.8 of these Bylaws.
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When a quorum is present at any meeting, 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 the laws of the State of Delaware or
of the Certificate of Incorporation or these Bylaws, a vote of a greater number
or voting by classes is required, in which case such express provision shall
govern and control the decision of the question.
If a quorum be initially present, the stockholders may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum, if any action taken is approved by a
majority of the stockholders initially constituting the quorum.
2.8 ADJOURNED MEETING; NOTICE
Any stockholders' meeting, annual or special, whether or not a quorum
is present, may be adjourned from time to time by the vote of the majority of
the voting power of the shares represented at that meeting, either in person or
by proxy. In the absence of a quorum, no other business may be transacted at
that meeting except as provided in Section 2.7 of these Bylaws.
When any meeting of stockholders, either annual or special, is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place are announced at the meeting at which the
adjournment is taken. However, if a new record date for the adjourned meeting is
fixed or if the adjournment is for more than thirty (30) days from the date set
for the original meeting, then notice of the adjourned meeting shall be given.
Notice of any such adjourned meeting shall be given to each stockholder of
record entitled to vote at the adjourned meeting in accordance with the
provisions of Sections 2.5 and 2.6 of these Bylaws. At any adjourned meeting the
corporation may transact any business which might have been transacted at the
original meeting.
2.9 VOTING
The stockholders entitled to vote at any meeting of stockholders
shall be determined in accordance with the provisions of Section 2.12 of these
Bylaws, subject to the provisions of Sections 217 and 218 of the General
Corporation Law of Delaware (relating to voting rights of fiduciaries, pledgers
and joint owners, and to voting trusts and other voting agreements).
Except as may be otherwise provided in the Certificate of
Incorporation, by these Bylaws or required by law, each stockholder shall be
entitled to one vote for each share of capital stock held by such stockholder.
Any stockholder entitled to vote on any matter may vote part of the
shares in favor of the proposal and refrain from voting the remaining shares or,
except when the matter is the election of directors, may vote them against the
proposal; but if the stockholder fails to specify the number of shares which the
stockholder is voting affirmatively, it will be conclusively presumed that the
stockholder's approving vote is with respect to all shares which the stockholder
is entitled to vote.
2.10 VALIDATION OF MEETINGS; WAIVER OF NOTICE; CONSENT
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The transactions of any meeting of stockholders, either annual or
special, however called and noticed, and wherever held, shall be as valid as
though they had been taken at a meeting duly held after regular call and notice,
if a quorum be present either in person or by proxy.
Whenever notice is required to be given under any provision of the
General Corporation Law of Delaware or of the Certificate of Incorporation or
these Bylaws, a written waiver thereto, signed by the person entitled to notice,
whether before or after the time stated therein, will be deemed equivalent to
notice. Attendance by a person at a meeting shall also constitute a waiver of
notice of and presence at that meeting, except when the person objects at the
beginning of the meeting to the transaction of any business because the meeting
is not lawfully called or convened. Attendance at a meeting is not a waiver of
any right to object to the consideration of matters required by law to be
included in the notice of the meeting but not so included, if that objection is
expressly made at the meeting. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders need be specified
in any written waiver of notice unless so required by the Certificate of
Incorporation or these Bylaws.
2.11 NO STOCKHOLDER ACTION BY WRITTEN CONSENT
Effective as of the Trigger Date, any action required or permitted to
be taken by the stockholders of the corporation must be effected at a duly
called annual or special meeting of such holders and may not be effected by any
consent in writing by such holders.
2.12 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS
For purposes of determining the stockholders entitled to notice of
any meeting or to vote thereat, the board of directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10)
days before the date of any such meeting, and in such event only stockholders of
record on the date so fixed are entitled to notice and to vote, notwithstanding
any transfer of any shares on the books of the corporation after the record
date, except as otherwise provided in the Certificate of Incorporation, by these
Bylaws, by agreement or by applicable law.
If the board of directors does not so fix a record date, 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, at the
close of business on the business day next preceding the day on which the
meeting is held.
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 for the adjourned meeting,
but the board of directors shall fix a new record date if the meeting is
adjourned for more than thirty (30) days from the date set for the original
meeting.
The record date for any other purpose shall be as provided in Section
8.1 of these Bylaws.
2.13 PROXIES
Every person entitled to vote for directors, or on any other matter,
shall have the right to do so either in person or by one or more agents
authorized by a written proxy filed with the secretary of
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the corporation. A written proxy may be in the form of a telegram, cablegram, or
other means of electronic transmission which sets forth or is submitted with
information from which it can be determined that the telegram, cablegram, or
other means of electronic transmission was authorized by the person. No such
proxy shall be voted or acted upon after three (3) years from its date, unless
the proxy provides for a longer period. A duly executed proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power.
The revocability of a proxy that states on its face that it is irrevocable shall
be governed by the provisions of Section 212(e) of the General Corporation Law
of Delaware. A stockholder may revoke any proxy which is not irrevocable by
attending the meeting and voting in person or by filing an instrument in writing
revoking the proxy or by filing another duly executed proxy bearing a later date
with the secretary of the corporation.
A proxy is not revoked by the death or incapacity of the maker
unless, before the vote is counted, written notice of such death or incapacity
is received by the corporation.
2.14 INSPECTORS OF ELECTION
Before any meeting of stockholders, the board of directors shall
appoint an inspector or inspectors of election to act at the meeting or its
adjournment. The number of inspectors shall be either one (1) or three (3).
If any person appointed as inspector fails to appear or fails or refuses to
act, then the chairman of the meeting may, and upon the request of any
stockholder or a stockholder's proxy shall, appoint a person to fill that
vacancy.
Such inspectors shall:
(a) determine the number of shares outstanding and the voting power
of each, the number of shares represented at the meeting, the
existence of a quorum, and the authenticity, validity, and
effect of proxies;
(b) receive votes, ballots or consents;
(c) hear and determine all challenges and questions in any way
arising in connection with the right to vote;
(d) count and tabulate all votes or consents;
(e) determine when the polls shall close;
(f) determine the result; and
(g) do any other acts that may be proper to conduct the election or
vote with fairness to all stockholders.
The inspectors of election shall perform their duties impartially, in
good faith, to the best of their ability and as expeditiously as is practical.
If there are three (3) inspectors of election, the decision, act or certificate
of a majority is effective in all respects as the decision, act or certificate
of
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all. Any report or certificate made by the inspectors of election is prima
facie evidence of the facts stated therein.
ARTICLE III
DIRECTORS
3.1 POWERS
Subject to the provisions of the General Corporation Law of Delaware
and to any limitations in the Certificate of Incorporation or these Bylaws
relating to action required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
board of directors.
3.2 NUMBER
The authorized number of directors shall be fixed at seven (7). The
number of directors may be changed by an amendment to these Bylaws, duly adopted
by the board of directors or by the stockholders, or by a duly adopted amendment
to the Certificate of Incorporation.
No reduction of the authorized number of directors shall have the
effect of removing any director before that director's term of office expires.
If for any cause, the directors shall not have been elected at an annual
meeting, they may be elected as soon thereafter as convenient at a special
meeting of the stockholders called for that purpose in the manner provided in
these Bylaws.
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS
Except as provided in the Certificate of Incorporation or Section 3.4
of these Bylaws, directors shall be classified, with respect to the time for
which they severally hold office, into three classes, as nearly equal in number
as possible, one class to be originally elected for a term expiring at the
annual meeting of stockholders to be held in 2000, another class to be
originally elected for a term expiring at the annual meeting of stockholders to
be held in 2001, and another class to be originally elected for a term expiring
at the annual meeting of stockholders to be held in 2002, with each class to
hold office until its successor is duly elected and qualified. At each
succeeding annual meeting of stockholders, directors elected to succeed those
directors whose terms then expire shall be elected for a term of office to
expire at the third succeeding annual meeting of stockholders after their
election, with each director to hold office until such person's successor shall
have been elected and qualified or until such person's earlier resignation or
removal. Each director, including a director elected or appointed to fill a
vacancy, shall hold office until his successor is elected and qualified or until
his earlier resignation or removal.
Directors need not be stockholders unless so required by the
Certificate of Incorporation or by these Bylaws; wherein other qualifications
for directors may be prescribed.
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Election of directors need not be by written ballot unless so
required by the Certificate of Incorporation or by these Bylaws; wherein other
qualifications for directors may be prescribed.
3.4 RESIGNATION AND VACANCIES
Any director may resign effective on giving written notice to the
chairman of the board, the president, the secretary or the board of
directors, unless the notice specifies a later time for that resignation to
become effective. If the resignation of a director is effective at a future
time, the board of directors may elect a successor to take office when the
resignation becomes effective.
Unless otherwise provided in the Certificate of Incorporation or
these Bylaws:
(i) 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, even if
less than a quorum, or by a sole remaining director. Each
director so elected shall hold office for the remainder of the
full term of the class of directors in which the new
directorship was created or the vacancy occurred and until a
successor has been elected and qualified.
(ii) Whenever the holders of any class or classes of stock or series
thereof are entitled to elect one or more directors by the
provisions of the Certificate of Incorporation, 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 thereof then in office, or by a sole
remaining director so elected.
If at any time, by reason of death or resignation or other cause, the
corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a stockholder,
or other fiduciary entrusted with like responsibility for the person or estate
of a stockholder, may call a special meeting of stockholders solely for he
purpose of electing directors in accordance with the provisions of the
Certificate of Incorporation or these Bylaws, or may apply to the Court of
Chancery for a decree summarily ordering an election as provided in Section 211
of the General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority of
the whole board (as constituted immediately prior to any such increase), then
the Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent (10%) of the total number of the then outstanding
shares having the right to vote for such directors, summarily order an election
to be held to fill any such vacancies or newly created directorships, or to
replace the directors chosen by the directors then in office as aforesaid, which
election shall be governed by the provisions of Section 211 of the General
Corporation Law of Delaware as far as applicable.
3.5 REMOVAL
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Unless otherwise restricted by statute, by the Certificate of
Incorporation or by these Bylaws, any director or the entire board of directors
may be removed from office only for cause by the holders of a majority of the
shares then entitled to vote at an election of directors.
3.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
Regular meetings of the board of directors may be held at any place
within or outside the State of Delaware that has been designated from time to
time by resolution of the board of directors. In the absence of such a
designation, regular meetings shall be held at the principal executive office of
the corporation. Special meetings of the board of directors may be held at any
place within or outside the State of Delaware that has been designated in the
notice of the meeting or, if not stated in the notice or if there is no notice,
at the principal executive office of the corporation.
Any meeting, regular or special, may be held by conference telephone
or similar communication equipment, so long as all directors participating in
the meeting can hear one another; and all such directors shall be deemed to be
present in person at the meeting.
3.7 REGULAR MEETINGS
Regular meetings of the board of directors may be held without notice
if the times of such meetings are fixed by the board of directors.
3.8 SPECIAL MEETINGS; NOTICE
Special meetings of the board of directors for any purpose or
purposes may be called at any time by the chairman of the board, the vice
chairman of the board, the president, the chairman of the executive committee,
any vice president or the secretary or by any two (2) or more of the directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by mail, telecopy, telegram
or other electronic or wireless means, charges prepaid, addressed to each
director at that director's address as it is shown on the records of the
corporation or if the address is not readily ascertainable, notice shall be
addressed to the director at the city or place in which the meetings of
directors are regularly held. If the notice is mailed, it shall be deposited in
the United States mail at least four (4) days before the time of the holding of
the meeting. If the notice is delivered personally or by telephone, telecopy,
telegram or other electronic or wireless means, it shall be delivered personally
or by telephone or other electronic or wireless means or to the telegraph
company at least twenty-four (24) hours before the time of the holding of the
meeting. Any oral notice given personally or by telephone may be communicated
either to the director or to a person at the office of the director who the
person giving the notice has reason to believe will promptly communicate it to
the director. If the meeting is to be held at the principal executive office of
the corporation, the notice need not specify the place of the meeting. Moreover,
a notice of special meeting need not state the purpose of such meeting, and,
unless indicated in the notice thereof, any and all business may be transacted
at a special meeting.
3.9 QUORUM
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A majority of the authorized number of directors shall constitute a
quorum for the transaction of business, except to fill vacancies in the board of
directors as provided in Section 3.4 and to adjourn as provided in Section 3.11
of these Bylaws. Every act or decision done or made by a majority of the
directors present at a duly held meeting at which a quorum is present shall be
regarded as the act of the board of directors, subject to the provisions of the
Certificate of Incorporation and applicable law.
A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for that
meeting.
3.10 WAIVER OF NOTICE
Notice of a meeting need not be given to any director (i) who signs a
waiver of notice or a consent to holding the meeting or an approval of the
minutes thereof, whether before or after the meeting, or (ii) who attends the
meeting without protesting, prior thereto or at its commencement, the lack of
notice to such directors. The transactions of any meeting of the board, 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. All such waivers shall be filed with the corporate records or
made part of the minutes of the meeting. A waiver of notice need not specify the
purpose of any regular or special meeting of the board of directors.
3.11 ADJOURNMENT
A majority of the directors present, whether or not constituting a
quorum, may adjourn any meeting to another time and place.
3.12 NOTICE OF ADJOURNMENT
Notice of the time and place of holding an adjourned meeting need not
be given if announced unless the meeting is adjourned for more than twenty-four
(24) hours. If the meeting is adjourned for more than twenty-four (24) hours,
then notice of the time and place of the adjourned meeting shall be given before
the adjourned meeting takes place, in the manner specified in Section 3.8 of
these Bylaws, to the directors who were not present at the time of the
adjournment.
3.13 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Any action required or permitted to be taken by the board of
directors may be taken without a meeting, provided that all members of the board
of directors individually or collectively consent in writing to that action.
Such action by written consent shall have the same force and effect as a
unanimous vote of the board of directors. Such written consent and any
counterparts thereof shall be filed with the minutes of the proceedings of the
board.
3.14 ORGANIZATION
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Meetings of the board of directors shall be presided over by the
chairman of the board, if any, or in his or her absence by the vice chairman of
the board, if any, or in his or her absence by the chairman of the executive
committee, if any, or in his or her absence by the president, if any, or in his
or her absence by the executive vice president. In the absence of all such
directors, a president pro tem chosen by a majority of the directors present
shall preside at the meeting. The secretary shall act as secretary of the
meeting, but in his or her absence the chairman of the meeting may appoint any
person to act as secretary of the meeting.
3.15 FEES AND COMPENSATION OF DIRECTORS
Directors and members of committees may receive such compensation, if
any, for their services and such reimbursement of expenses as may be fixed or
determined by resolution of the board of directors. This Section 3.15 shall not
be construed to preclude any director from serving the corporation in any other
capacity as an officer, agent, employee or otherwise and receiving compensation
for those services.
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS
The board of directors may designate one (1) or more committees, each
consisting of one or more directors, to serve at the pleasure of the board of
directors. The board of directors may designate one (1) or more directors as
alternate members of any committee, who may replace any absent member at any
meeting of the committee. Any committee, to the extent provided in the
resolution of the board, shall have all the authority of the board, but no such
committee shall have the power or authority to (i) approve or adopt or recommend
to the stockholders any action or matter that requires the approval of the
stockholders or (ii) adopt, amend or repeal any Bylaw of the corporation.
4.2 MEETINGS AND ACTION OF COMMITTEES
Meetings and actions of committees shall be governed by, and held and
taken in accordance with, the provisions of Article III of these Bylaws, Section
3.6 (place of meetings), Section 3.7 (regular meetings), Section 3.8 (special
meetings and notice), Section 3.9 (quorum), Section 3.10 (waiver of notice),
Section 3.11 (adjournment), Section 3.12 (notice of adjournment), and Section
3.13 (action without meeting), with such changes in the context of those Bylaws
as are necessary to substitute the committee and its members for the board of
directors and its members; provided, however, that the time of regular meetings
of committees may be determined either by resolution of the board of directors
or by resolution of the committee, that special meetings of committees may also
be called by resolution of the board of directors, and that notice of special
meetings of committees shall also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The board of directors
may adopt rules for the government of any committee not inconsistent with the
provisions of these Bylaws.
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4.3 COMMITTEE MINUTES
Each committee shall keep regular minutes of its meetings and report
the same to the board of directors when required.
4.4 EXECUTIVE COMMITTEE
In the event that the board of directors appoints an executive
committee, such executive committee, in all cases in which specific
directions to the contrary shall not have been given by the board of
directors, shall have and may exercise, during the intervals between the
meetings of the board of directors, all the powers and authority of the board
of directors in the management of the business and affairs of the corporation
(except as provided in Section 4.1 hereof) in such manner as the executive
committee may deem in the best interests of the corporation.
ARTICLE V
OFFICERS
5.1 OFFICERS
The officers of this corporation shall consist of a chief executive
officer, one or more vice presidents, a secretary and a chief financial officer
who shall be chosen by the Board of Directors and such other officers, including
but not limited to a chairman of the board, a vice chairman of the board, a
chairman of the executive committee, a president and a treasurer, as the board
of directors shall deem expedient, who shall be chosen in such manner and hold
their offices for such terms as the board of directors may prescribe. Any two or
more of such offices may be held by the same person. The board of directors may
designate one or more vice presidents as executive vice presidents or senior
vice presidents. The board of directors may from time to time designate the
president or any executive vice president as the chief operating officer of the
corporation. Any vice president, treasurer or assistant treasurer, or assistant
secretary respectively may exercise any of the powers of the president, the
chief financial officer, or the secretary, respectively, as directed by the
board of directors and shall perform such other duties as are imposed upon such
officer by the Bylaws or the board of directors.
5.2 ELECTION OF OFFICERS
In addition to officers elected by the board of directors in
accordance with Sections 5.1 and 5.3, the corporation may have one or more
appointed vice presidents. Such vice presidents may be appointed by the chairman
of the board or the president and shall have such duties as may be established
by the chairman or president. Vice presidents appointed pursuant to this Section
5.2 may be removed in accordance with Section 5.4.
5.3 TERMS OF OFFICE AND COMPENSATION
The term of office and salary of each of said officers and the manner
and time of the payment of such salaries shall be fixed and determined by the
board of directors and may be altered
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by said board from time to time at its pleasure, subject to the rights, if any,
of said officers under any contract of employment.
5.4 REMOVAL; RESIGNATION OF OFFICERS AND VACANCIES
Any officer of the corporation may be removed at the pleasure of the
board of directors at any meeting or, except in the case of an officer chosen by
the board of directors, at the pleasure of any officer who may be granted such
power by a resolution of the board of directors. Any officer may resign at any
time upon written notice to the corporation without prejudice to the rights, if
any, of the corporation under any contract to which the officer is a party. If
any vacancy occurs in any office of the corporation, the board of directors may
elect a successor to fill such vacancy for the remainder of the unexpired term
and until a successor is duly chosen and qualified.
5.5 CHAIRMAN OF THE BOARD
The chairman of the board, if such an officer be elected, shall have
general supervision, direction and control of the corporation's business and its
officers, and, if present, preside at meetings of the stockholders and the board
of directors and exercise and perform such other powers and duties as may from
time to time be assigned to him by the board of directors or as may be
prescribed by these Bylaws. The chairman of the board shall report to the board
of directors.
5.6 VICE CHAIRMAN OF THE BOARD
The vice chairman of the board of directors, if there shall be one,
shall, in the case of the absence, disability or death of the chairman, exercise
all the powers and perform all the duties of the chairman of the board. The vice
chairman shall have such other powers and perform such other duties as may be
granted or prescribed by the board of directors.
5.7 CHAIRMAN OF EXECUTIVE COMMITTEE
The chairman of the executive committee, if there be one, shall
have the power to call meetings of the board of directors to be held subject
to the limitations prescribed by law or by these Bylaws, at such times and at
such places as the chairman of the executive committee shall deem proper. The
chairman of the executive committee shall have such other powers and be
subject to such other duties as the board of directors may from time to time
prescribe.
5.8 CHIEF EXECUTIVE OFFICER
The powers and duties of the chief executive officer are:
(a) To call meetings of the board of directors to be held, subject
to the limitations prescribed by law or by these Bylaws, at such
times and at such places as the chief executive officer shall
deem proper.
(b) To affix the signature of the corporation to all deeds,
conveyances, mortgages, leases, obligations, bonds, certificates
and other papers and instruments in writing which have been
authorized by the board of directors or which, in the judgment
of the chief
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executive officer, should be executed on behalf of the
corporation, and to sign certificates for shares of stock of the
corporation.
(c) To have such other powers and be subject to such other duties as
the board of directors may from time to time prescribe.
5.9 VICE PRESIDENTS
In case of the absence, disability or death of the president, the
elected vice president, or one of the elected vice presidents, shall exercise
all the powers and perform all the duties of the president. If there is more
than one elected vice president, the order in which the elected vice presidents
shall succeed to the powers and duties of the president shall be as fixed by the
board of directors. The elected vice president or elected vice presidents shall
have such other powers and perform such other duties as may be granted or
prescribed by the board of directors.
Vice presidents appointed pursuant to Section 5.2 shall have such
powers and duties as may be fixed by the chairman or president, except that such
appointed vice presidents may not exercise the powers and duties of the
president.
5.10 SECRETARY
The powers and duties of the secretary are:
(a) To keep a book of minutes at the principal office of the
corporation, or such other place as the board of directors may
order, of all meetings of its directors and stockholders with
the time and place of holding, whether regular or special, and,
if special, how authorized, the notice thereof given, the names
of those present at directors' meetings, the number of shares
present or represented at stockholders' meetings and the
proceedings thereof.
(b) To keep the seal of the corporation and affix the same to all
instruments which may require it.
(c) To keep or cause to be kept at the principal office of the
corporation, or at the office of the transfer agent or agents, a
share register, or duplicate share registers, showing the names
of the stockholders and their addresses, the number of and
classes of shares, and the number and date of cancellation of
every certificate surrendered for cancellation.
(d) To keep a supply of certificates for shares of the corporation,
to fill in all certificates issued, and to make a proper record
of each such issuance; provided, that so long as the corporation
shall have one or more duly appointed and acting transfer agents
of the shares, or any class or series of shares, of the
corporation, such duties with respect to such shares shall be
performed by such transfer agent or transfer agents.
(e) To transfer upon the share books of the corporation any and all
shares of the corporation; provided, that so long as the
corporation shall have one or more duly
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appointed and acting transfer agents of the shares, or any class
or series of shares, of the corporation, such duties with
respect to such shares shall be performed by such transfer agent
or transfer agents, and the method of transfer of each
certificate shall be subject to the reasonable regulations of
the transfer agent to which the certificate is presented for
transfer, and also, if the corporation then has one or more duly
appointed and acting registrars, to the reasonable regulations
of the registrar to which the new certificate is presented for
registration; and provided, further that no certificate for
shares of stock shall be issued or delivered or, if issued or
delivered, shall have any validity whatsoever until and unless
it has been signed or authenticated in the manner provided in
Section 8.5 hereof.
(f) To make service and publication of all notices that may be
necessary or proper, and without command or direction from
anyone. In case of the absence, disability, refusal, or neglect
of the secretary to make service or publication of any notices,
then such notices may be served and/or published by the
president or a vice president, or by any person thereunto
authorized by either of them or by the board of directors or by
the holders of a majority of the outstanding shares of the
corporation.
(g) Generally to do and perform all such duties as pertain to the
office of secretary and as may be required by the board of
directors.
5.11 CHIEF FINANCIAL OFFICER
The powers and duties of the chief financial officer are:
(a) To supervise the corporate-wide treasury functions and financial
reporting to external bodies.
(b) To have the custody of all funds, securities, evidence of
indebtedness and other valuable documents of the corporation
and, at the chief financial officer's discretion, to cause any
or all thereof to be deposited for account of the corporation at
such depositary as may be designated from time to time by the
board of directors.
(c) To receive or cause to be received, and to give or cause to be
given, receipts and acquittances for monies paid in for the
account of the corporation.
(d) To disburse, or cause to be disbursed, all funds of the
corporation as may be directed by the board of directors, taking
proper vouchers for such disbursements.
(e) To render to the president and to the board of directors,
whenever they may require, accounts of all transactions and of
the financial condition of the corporation.
(f) Generally to do and perform all such duties as pertain to the
office of chief financial officer and as may be required by the
board of directors.
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ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
AND OTHER AGENTS
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the maximum extent and in the manner
permitted by the General Corporation Law of Delaware, indemnify each of its
directors and officers against expenses (including attorneys' fees), judgments,
fines, settlements and other amounts actually and reasonably incurred in
connection with any proceeding, arising by reason of the fact that such person
is or was an agent of the corporation; provided, however, that the corporation
may modify the extent of such indemnification by individual contracts with its
directors and executive officers and, provided, further, that the corporation
shall not be required to indemnify any director or officer in connection with
any proceeding (or part thereof) initiated by such person unless (i) such
indemnification is expressly required to be made by law, (ii) the proceeding was
authorized in advance by the board of directors of the corporation, (iii) such
indemnification is provided by the corporation, in its sole discretion, pursuant
to the powers vested in the corporation under the General Corporation Law of
Delaware or (iv) such indemnification is required to be made pursuant to an
individual contract. For purposes of this Section 6.1, a "director" or "officer"
of the corporation includes any person (i) who is or was a director or officer
of the corporation, (ii) who is or was serving at the request of the corporation
as a director or officer of another corporation, partnership, joint venture,
trust or other enterprise, or (iii) who was a director or officer of a
corporation which was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation.
6.2 INDEMNIFICATION OF OTHERS
The corporation shall have the power, to the maximum extent and in
the manner permitted by the General Corporation Law of Delaware, to indemnify
each of its employees and agents (other than directors and officers) against
expenses (including attorneys' fees), judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with any proceeding,
arising by reason of the fact that such person is or was an agent of the
corporation. For purposes of this Section 6.2, an "employee" or "agent" of the
corporation (other than a director or officer) includes any person (i) who is or
was an employee or agent of the corporation, (ii) who is or was serving at the
request of the corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or (iii) who was an
employee or agent of a corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such predecessor
corporation.
6.3 INSURANCE
The corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity, or arising out of his or her status as such,
whether or not the corporation
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would have the power to indemnify him or her against such liability under the
provisions of the General Corporation Law of Delaware.
6.4 EXPENSES
The corporation shall advance to 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, by
reason of the fact that he or she 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 of another corporation, partnership, joint venture, trust or
other enterprise, prior to the final disposition of the proceeding, promptly
following request therefor, all expenses incurred by any director or officer in
connection with such proceeding, upon receipt of an undertaking by or on behalf
of such person to repay said amounts if it should be determined ultimately that
such person is not entitled to be indemnified under this Bylaw or otherwise;
provided, however, that the corporation shall not be required to advance
expenses to any director or officer in connection with any proceeding (or part
thereof) initiated by such person unless the proceeding was authorized in
advance by the board of directors of the corporation.
Notwithstanding the foregoing, unless otherwise determined pursuant
to Section 6.5, no advance shall be made by the corporation to an officer of the
corporation (except by reason of the fact that such officer is or was a director
of the corporation in which event this paragraph shall not apply) in any action,
suit or proceeding, whether civil, criminal, administrative or investigative, if
a determination is reasonably and promptly made (i) by the board of directors by
a majority vote of a quorum consisting of directors who were not parties to the
proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, that the facts known to the decision-making party at the time
such determination is made demonstrate clearly and convincingly that such person
acted in bad faith or in a manner that such person did not believe to be in or
not opposed to the best interests of the corporation.
6.5 NON-EXCLUSIVITY OF RIGHTS
The rights conferred on any person by this Bylaw shall not be
exclusive of any other right which such person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding office. The corporation is specifically authorized to enter into
individual contracts with any or all of its directors, officers, employees or
agents respecting indemnification and advances, to the fullest extent not
prohibited by the General Corporation Law of Delaware.
6.6 SURVIVAL OF RIGHTS
The rights conferred on any person by this Bylaw shall continue as to
a person who has ceased to be a director, officer, employee or other agent and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
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6.7 AMENDMENTS
Any repeal or modification of this Bylaw shall only be prospective
and shall not affect the rights under this Bylaw in effect at the time of the
alleged occurrence of any action or omission to act that is the cause of any
proceeding against any agent of the corporation.
ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF RECORDS
The corporation shall, either at its principal executive office or at
such place or places as designated by the board of directors, keep a record of
its stockholders listing their names and addresses and the number and class of
shares held by each stockholder, a copy of these Bylaws as amended to date,
accounting books and other records.
Any stockholder of record, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have the
right during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in Delaware or at its principal place of
business.
7.2 INSPECTION BY DIRECTOR
Any director shall have the right to examine the corporation's stock
ledger, a list of its stockholders and its other books and records for a purpose
reasonably related to his or her position as a director. The Court of Chancery
is hereby vested with the exclusive jurisdiction to determine whether a director
is entitled to the inspection sought. The Court may summarily order the
corporation to permit the director to inspect any and all books and records, the
stock ledger, and the stock list and to make copies or extracts therefrom. The
Court may, in its discretion, prescribe any limitations or conditions with
reference to the inspection, or award such other and further relief as the Court
may deem just and proper.
7.3 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The president or any other officer of this corporation authorized by
the board of directors is authorized to vote, represent, and exercise on behalf
of this corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of this corporation. The
authority herein granted may be exercised either by such person directly or by
any other person authorized to do so by proxy or power of attorney duly executed
by such person having the authority.
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ARTICLE VIII
GENERAL MATTERS
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING
For purposes of determining the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any other lawful
action, the board of directors may fix, in advance, a record date, which shall
not be more than sixty (60) days before any such action. In that case, only
stockholders of record at the close of business on the date so fixed are
entitled to receive the dividend, distribution or allotment of rights, or to
exercise such rights, as the case may be, notwithstanding any transfer of any
shares on the books of the corporation after the record date so fixed, except as
otherwise provided in the Certificate of Incorporation, by these Bylaws, by
agreement or by law.
If the board of directors does not so fix a record date, then the
record date for determining stockholders for any such purpose shall be at the
close of business on the day on which the board adopts the applicable resolution
or the sixtieth (60th) day before the date of that action, whichever is later.
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS
From time to time, the board of directors shall determine by
resolution which person or persons may sign or endorse all checks, drafts,
other orders for payment of money, notes or other evidences of indebtedness
that are issued in the name of or payable to the corporation, and only the
persons so authorized shall sign or endorse those instruments.
8.3 CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED
The board of directors, except as otherwise provided in these Bylaws,
may authorize any officer or officers, or agent or agents, to enter into any
contract or execute any instrument in the name of and on behalf of the
corporation; such authority may be general or confined to specific instances.
Unless so authorized or ratified by the board of directors or within the agency
power of an officer, no officer, agent or employee shall have any power or
authority to bind the corporation by any contract or engagement or to pledge its
credit or to render it liable for any purpose or for any amount.
8.4 FISCAL YEAR
The fiscal year of this corporation shall end on the Friday nearest
to May 31 and shall begin for the following fiscal year on the next day
thereafter.
8.5 STOCK CERTIFICATES
There shall be issued to each holder of fully paid shares of the
capital stock of the corporation a certificate or certificates for such shares.
Every holder of shares of the corporation shall be entitled to have a
certificate signed by, or in the name of the corporation by, the chairman or
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vice chairman of the board of directors, or the president or a vice president,
and by the treasurer or an assistant treasurer, or the secretary or an assistant
secretary of such corporation representing the number of shares registered in
certificate form. Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate has ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if he or she were such
officer, transfer agent or registrar at the date of issue.
8.6 SPECIAL DESIGNATION ON CERTIFICATES
If the corporation is authorized to issue more than one class of
stock or more than one series of any class, then the powers, the designations,
the preferences, and the relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights shall be set forth
in full or summarized on the face or back of the certificate that the
corporation shall issue to represent such class or series of stock; provided,
however, that, except as otherwise provided in Section 202 of the General
Corporation Law of Delaware, in lieu of the foregoing requirements there may be
set forth on the face or back of the certificate that the corporation shall
issue to represent such class or series of stock a statement that the
corporation will furnish without charge to each stockholder who so requests the
powers, the designations, the preferences, and the relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
8.7 LOST CERTIFICATES
The corporation may issue a new share certificate or new certificate
for any other security in the place of any certificate theretofore issued by it,
alleged to have been lost, stolen or destroyed, and the corporation may require
the owner of the lost, stolen or destroyed certificate or the owner's legal
representative to give the corporation a bond (or other adequate 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 of any such certificate or the issuance of such new certificate. The
board of directors may adopt such other provisions and restrictions with
reference to lost certificates, not inconsistent with applicable law, as it
shall in its discretion deem appropriate.
8.8 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions, rules
of construction, and definitions in the General Corporation Law of Delaware
shall govern the construction of these Bylaws. Without limiting the generality
of this provision, the singular number includes the plural, the plural number
includes the singular, and the term "person" includes both a corporation and a
natural person.
8.9 PROVISIONS ADDITIONAL TO PROVISIONS OF LAW
All restrictions, limitations, requirements and other provisions of
these Bylaws shall be construed, insofar as possible, as supplemental and
additional to all provisions of law applicable to
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the subject matter thereof and shall be fully complied with in addition to the
said provisions of law unless such compliance shall be illegal.
8.10 PROVISIONS CONTRARY TO PROVISIONS OF LAW
Any article, section, subsection, subdivision, sentence, clause or
phrase of these Bylaws which upon being construed in the manner provided in
Section 8.9 hereof, shall be contrary to or inconsistent with any applicable
provisions of law, shall not apply so long as said provisions of law shall
remain in effect, but such result shall not affect the validity or applicability
of any other portions of these Bylaws, it being hereby declared that these
Bylaws would have been adopted and each article, section, subsection,
subdivision, sentence, clause or phrase thereof, irrespective of the fact that
any one or more articles, sections, subsections, subdivisions, sentences,
clauses or phrases is or are illegal.
8.11 NOTICES
Any reference in these Bylaws to the time a notice is given or sent
means, unless otherwise expressly provided, the time a written notice by mail is
deposited in the United States mails, postage prepaid; or the time any other
written notice is personally delivered to the recipient or is delivered to a
common carrier for transmission, or actually transmitted by the person giving
the notice by electronic means, to the recipient; or the time any oral notice is
communicated, in person or by telephone or wireless, to the recipient or to a
person at the office of the recipient who the person giving the notice has
reason to believe will promptly communicate it to the recipient.
ARTICLE IX
AMENDMENTS
Subject to Section 6.7 hereof, the original or other bylaws of the
corporation may be adopted, amended or repealed (1) at any annual or special
meeting of stockholders, by the affirmative vote of the holders of a majority of
the voting power of the stock issued and outstanding and entitled to vote
thereat, provided, however, that any proposed alteration or repeal of, or the
adoption of any By-Law inconsistent with, Section 2.2, 2.3, 2.5 or 2.11 of
Article II of the By-Laws or with Section 3.2, 3.3, 3.4 or 3.5 of Article III of
the By-Laws or this sentence, by the stockholders shall require the affirmative
vote of the holders of at least 80% of the voting power of all Voting Stock then
outstanding, voting together as a single class; and, provided, further, however,
that in the case of any such stockholder action at a special meeting of
stockholders, notice of the proposed alteration, repeal or adoption of the new
By-Law or By-Laws must be contained in the notice of such special meeting, or
(2) by the affirmative vote of a majority of the Board of Directors. The fact
that the power to amend these By-Laws has been so conferred upon the directors
shall not divest the stockholders of the power, nor limit their power to adopt,
amend or repeal bylaws.
Whenever an amendment or new bylaw is adopted, it shall be copied in
the book of bylaws with the original bylaws, in the appropriate place. If any
bylaw is repealed, the fact of repeal with the
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date of the meeting at which the repeal was enacted or the filing of the
operative written consent(s) shall be stated in said book.
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