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EXHIBIT 3.4
FORM OF
AMENDED AND RESTATED BYLAWS
OF
OMNISKY CORPORATION
(A DELAWARE CORPORATION)
Date of Adoption: ____________, 2000
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OMNISKY CORPORATION
BYLAWS
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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 MEETINGS..................................................................2
2.4 NOTICE OF STOCKHOLDERS' MEETINGS..................................................2
2.5 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER BUSINESS...................2
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE......................................2
2.7 QUORUM............................................................................3
2.8 ADJOURNED MEETING NOTICE..........................................................3
2.9 VOTING............................................................................3
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING...........................4
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING........................................4
2.12 PROXIES...........................................................................4
2.13 ORGANIZATION......................................................................5
2.14 LIST OF STOCKHOLDERS ENTITLED TO VOTE.............................................5
ARTICLE III DIRECTORS............................................................................6
3.1 POWERS............................................................................6
3.2 NUMBER AND QUALIFICATION OF DIRECTORS.............................................6
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS; CLASSES.................................6
3.4 RESIGNATION AND VACANCIES.........................................................7
3.5 REMOVAL OF DIRECTORS..............................................................7
3.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE..........................................7
3.7 REGULAR MEETINGS..................................................................8
3.8 SPECIAL MEETINGS; NOTICE..........................................................8
3.9 QUORUM............................................................................8
3.10 WAIVER OF NOTICE..................................................................9
3.11 ADJOURNMENT.......................................................................9
3.12 NOTICE OF ADJOURNMENT.............................................................9
3.13 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING.................................9
3.14 FEES AND COMPENSATION OF DIRECTORS................................................9
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3.15 APPROVAL OF LOANS TO OFFICERS.....................................................9
3.16 SOLE DIRECTOR....................................................................10
3.17 NOMINATION OF DIRECTORS; STOCKHOLDERS' PROPOSALS AT ANNUAL OR SPECIAL
MEETINGS.........................................................................10
3.18 ORGANIZATION.....................................................................12
ARTICLE IV COMMITTEES...........................................................................12
4.1 COMMITTEES OF DIRECTORS..........................................................12
4.2 MEETINGS AND ACTIONS OF COMMITTEES...............................................12
4.3 COMMITTEE MINUTES................................................................13
ARTICLE V OFFICERS..............................................................................13
5.1 OFFICERS.........................................................................13
5.2 ELECTION OF OFFICERS.............................................................13
5.3 REMOVAL AND RESIGNATION OF OFFICERS..............................................14
5.4 VACANCIES IN OFFICES.............................................................14
5.5 CHAIRMAN OF THE BOARD............................................................14
5.6 CHIEF EXECUTIVE OFFICER..........................................................14
5.7 PRESIDENT/CHIEF OPERATING OFFICER................................................15
5.8 VICE PRESIDENTS..................................................................15
5.9 SECRETARY........................................................................15
5.10 CHIEF FINANCIAL OFFICER..........................................................16
5.11 AUTHORITY AND DUTIES OF OFFICERS.................................................16
ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS...................16
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS........................................16
6.2 INDEMNIFICATION OF OTHERS........................................................17
6.3 INSURANCE........................................................................17
ARTICLE VII RECORDS AND REPORTS.................................................................18
7.1 MAINTENANCE AND INSPECTION OF RECORDS............................................18
7.2 INSPECTION BY DIRECTORS..........................................................18
7.3 REPRESENTATION OF SHARES OF OTHER CORPORATIONS...................................18
7.4 CERTIFICATION AND INSPECTION OF BYLAWS...........................................19
ARTICLE VIII GENERAL MATTERS....................................................................19
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING............................19
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS........................................19
8.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED................................19
8.4 SPECIAL DESIGNATION ON CERTIFICATES..............................................20
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8.5 LOST CERTIFICATES................................................................20
8.6 TRANSFER AGENTS AND REGISTRARS...................................................20
8.7 REGISTERED STOCKHOLDERS..........................................................20
8.8 DIVIDENDS........................................................................20
8.9 FISCAL YEAR......................................................................21
8.10 PROVISIONS CONCERNING NOTICE.....................................................21
8.11 CONSTRUCTION; DEFINITIONS........................................................21
ARTICLE IX AMENDMENTS...........................................................................21
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AMENDED AND RESTATED BYLAWS
OF
OMNISKY CORPORATION
(A DELAWARE CORPORATION)
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 of the Corporation (the "Board of Directors" or
the "Board") may at any time establish a principal executive office and one or
more 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 principal
executive office of the Corporation.
2.2 ANNUAL MEETING
The annual meeting of stockholders shall be held each year on a date and
at a time designated by the Board of Directors. In the absence of such
designation, the annual meeting of stockholders shall be held on the third
Friday in May in each year at 3:00 p.m. However, if such day falls on a legal
holiday, then the meeting shall be held at the same time and place on the next
succeeding full business day. At the meeting, directors shall be elected, and
any other proper business may be transacted.
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2.3 SPECIAL MEETINGS
A special meeting of the stockholders may be called at any time by the
Board of Directors, the Chairman of the Board, or the President, or as specified
in the Certificate of Incorporation.
2.4 NOTICE OF STOCKHOLDERS' MEETINGS
All notices of meetings of stockholders shall be sent or otherwise given
in accordance with Section 2.5 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 of Directors
intends to present for election.
2.5 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER BUSINESS
To be properly brought before an annual meeting or special meeting,
nominations for the election of directors or other business proposals 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 by a stockholder pursuant to Section 3.17 of these
Bylaws.
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders shall be given either (i)
personally or (ii) by first-class mail or (iii) by third-class mail but only if
the corporation has outstanding shares held of record by five hundred (500) or
more persons on the record date for the stockholders' meeting, or (iv) by
electronic, telegraphic or other form of communication. Notices not personally
delivered shall be sent charges paid 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. If no
such address appears on the corporation's books or is given, notice shall be
deemed to have been given if sent to that stockholder by mail or telegraphic or
other written communication to the corporation's principal executive office, or
if published at least once in a newspaper of general circulation in the county
where that office is located. Notice shall be deemed to have been given at the
time when delivered personally or deposited in the mail or sent by telegram or
other means of written communication.
If any notice addressed to a stockholder at the address of that
stockholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice to the stockholder
at that address, then all future notices or reports shall be deemed to have been
duly given without further
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mailing if the same shall be available to the stockholder on written demand of
the stockholder at the principal executive office of the corporation for a
period of one (1) year from the date of the giving of the notice.
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.
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 entitled to vote thereat, present in person
or represented by proxy, shall have power to adjourn the meeting in accordance
with Section 2.8 of these Bylaws.
When a quorum is present at any meeting, the vote of the holders of a
majority of the stock having voting power then 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 different
vote 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
When a meeting is adjourned to another time and place, unless these
Bylaws otherwise require, notice need not be given of the adjourned meeting if
the time and place thereof are announced at the meeting at which the adjournment
is taken. At the adjourned meeting the Corporation may transact any business
that might have been transacted at the original meeting. If the adjournment is
for more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
2.9 VOTING
The stockholders entitled to vote at any meeting of stockholders shall
be determined in accordance with the provisions of Section 2.11 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, pledgors and joint
owners, and to voting trusts and other voting agreements).
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Except as may be otherwise provided in the Certificate of Incorporation
or these Bylaws, each stockholder shall be entitled to one vote for each share
of voting capital stock held by such stockholder.
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
No action shall be taken by the stockholders of the Corporation except
at an annual or special meeting of stockholders called in accordance with these
Bylaws and no action shall be taken by the stockholders by written consent.
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING
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 precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors and 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 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.
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.
2.12 PROXIES
Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for him by a written or electronic
proxy, filed in accordance with the procedure established for the meeting or
taking of action in writing, but no such proxy shall be voted or acted upon
after three (3) years from its date, unless the proxy provides for a longer
period. Any copy, facsimile telecommunication or other reliable reproduction of
the writing or transmission created pursuant to this Section 2.12 may be
substituted or used in lieu of the original writing or transmission for any and
all purposes for which the original writing or transmission could be used,
provided that such copy, facsimile, telecommunication or other reproduction
shall be a complete reproduction of the entire original writing or transmission.
An electronic proxy (which may be transmitted via telephone, e-mail, the
Internet or such other electronic means as the Board of Directors may
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determine from time to time) shall be deemed executed if the Company receives an
appropriate electronic transmission from the stockholder or the stockholder's
attorney-in-fact along with a pass code or other identifier which reasonably
establishes the stockholder or the stockholder's attorney-in-fact as the sender
of such transmission. 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.
2.13 ORGANIZATION
The Chairman of the Board, or in the absence of the Chairman of the
Board, the Chief Executive Officer, shall call the meeting of the stockholders
to order, and shall act as chairman of the meeting. In the absence of the
Chairman of the Board and the Chief Executive Officer, the stockholders shall
appoint a chairman for such meeting. The Secretary of the Corporation shall act
as secretary of all meetings of the stockholders, but in the absence of the
Secretary at any meeting of the stockholders, the chairman of the meeting may
appoint any person to act as secretary of the meeting. 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 any meeting of stockholders shall determine in his or her
own judgment, the rules, regulations, procedures and acts which are necessary,
appropriate or convenient for the proper conduct of the meeting, including
without limitations the order of business at the meeting, the regulation of the
manner of voting and the conduct of business. 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.
2.14 LIST OF STOCKHOLDERS ENTITLED TO VOTE
The officer who has charge of the stock ledger of the Corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at the principal executive office of the Corporation or at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
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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 AND QUALIFICATION OF DIRECTORS
The number of directors of the Corporation shall be not less than six
(6) nor more than eleven (11). The exact number of directors shall be _______
(__) until changed, within the limits specified above, by a Bylaw amending this
Section 3.2, duly adopted by the Board of Directors or by the stockholders. The
indefinite number of directors may be changed, or a definite number fixed
without provision for an indefinite number, by a duly adopted amendment to this
Bylaw duly adopted by the vote or written consent of holders of a majority of
the outstanding shares entitled to vote; provided, however, that an amendment
reducing the number or minimum number of directors to a number less than three
(3) cannot be adopted if the votes cast against its adoption at a meeting of the
stockholders, or the shares not consenting in the case of action by written
consent, are equal to more than 66 2/3% of the outstanding shares entitled to
vote. No amendment may change the stated maximum number of authorized directors
to a number greater than two times the stated minimum number of directors minus
one.
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS; CLASSES
Except as provided in Section 3.4 of these Bylaws, directors shall hold
office until the expiration of the term for which elected and until a successor
has been elected and qualified; except that if any such election shall not be so
held, such election shall take place at a stockholder's meeting called and held
in accordance with the General Corporation Law of Delaware. Election of
directors need not be by written ballot.
The number of directors which constitute the whole Board of Directors of
the Corporation shall be fixed exclusively by one or more resolutions adopted
from time to time by the Board of Directors. The Board of Directors shall be
divided into three classes designated as Class I, Class II, and Class III,
respectively. Directors shall be assigned to each class in accordance with a
resolution or resolutions adopted by the Board of Directors. At the first annual
meeting of stockholders following the date of the adoption of these Bylaws, the
term of office of the Class I directors shall expire and Class I directors shall
be elected for a full term of three years. At the second annual meeting of
stockholders following the date of the adoption of these Bylaws, the term of
office of the Class II directors shall expire and Class II directors shall be
elected for a full term of three years. At the third annual meeting of
stockholders following the date of the adoption of these Bylaws, the term
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of office of the Class III directors shall expire and Class III directors shall
be elected for a full term of three years. At each succeeding annual meeting of
stockholders, directors shall be elected for a full term of three years to
succeed the directors of the class whose terms expire at such annual meeting.
3.4 RESIGNATION AND VACANCIES
Any director may resign effective upon 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. Each director so elected shall hold office until the
expiration of the term of office of the director whom he or she has replaced and
until a successor has been elected and qualified.
Unless otherwise provided in the Certificate of Incorporation or these
Bylaws, vacancies occurring on the Board of Directors for any reason and newly
created directorships resulting from an increase in the authorized number of
directors may be filled only by vote of a majority of the remaining members of
the Board of Directors, although less than a quorum, at any meeting of the Board
of Directors. A person so elected by the Board of Directors to fill a vacancy or
newly created directorship shall hold office until the next election of the
class for which such director shall have been chosen and until his or her
successor shall have been duly elected and qualified.
If at any time, by reason of death or resignation or other cause, the
Corporation should have no directors in office, then the provisions of Section
223 of the General Corporation Law of Delaware shall apply to filling such
vacancies.
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 provisions of Section 223 of the General Corporation Law of Delaware shall
apply to filling such vacancy or newly created directorship.
3.5 REMOVAL OF DIRECTORS
As provided in the Certificate of Incorporation, a director or the
entire Board of Directors may be removed from office by the stockholders of the
Corporation only for cause, by a vote of 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. 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 may be held at any place within or outside the
State of
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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 of the Board, 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 participating
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 at
such time as shall from time to time be determined by the Board of Directors. If
any regular meeting day shall fall on a legal holiday, then the meeting shall be
held at the same time and place on the next succeeding full business day.
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 Chief Executive
Officer, the President, any Executive or Senior Vice President, the Secretary or
any two directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail,
telecopy or telegram, charges prepaid, addressed to each director at that
director's address as it is shown on the records of the Corporation. 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 telecopy or telegram, it shall be delivered
personally or by telephone or to the telegraph company at least forty-eight (48)
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. The notice need not
specify the purpose or the place of the meeting, if the meeting is to be held at
the principal executive office of the Corporation.
3.9 QUORUM
A majority of the authorized number of directors shall constitute a
quorum for the transaction of business, except to adjourn as provided in Section
3.11 of these Bylaws. Every act or decision done or made by a majority of the
directors then 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 quorum for that meeting.
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3.10 WAIVER OF NOTICE
Notice of a meeting need not be given to any director (i) who signs a
waiver of notice, whether before or after the meeting, or (ii) who attends the
meeting other than for the express purpose of objecting and does expressly
object at the beginning of the meeting to the transaction of any business
because the meeting is not lawfully called or convened. 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 of the Board to another time and place.
3.12 NOTICE OF ADJOURNMENT
Notice of the time and place of holding an adjourned meeting of the
Board need not be given 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 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 of Directors.
3.14 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 3.14 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.
3.15 APPROVAL OF LOANS TO OFFICERS
The Corporation may lend money to, or guarantee any obligation of or
otherwise assist any officer or other employee of the Corporation of any of its
subsidiaries, including any officer or employee who is a director of the
Corporation or any of its subsidiaries, whenever, in the judgment of the
directors, such loan, guaranty or assistance may reasonably be expected to
benefit the Corporation. The loan, guaranty or other assistance may be with or
without interest and may be
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unsecured, or secured in such manner as the Board of Directors shall approve,
including, without limitation, a pledge of shares of stock of the Corporation.
Nothing contained in this Section 3.16 shall be deemed to deny, limit, or
restrict the powers of guaranty or warranty of the Corporation at common law or
under any statute.
3.16 SOLE DIRECTOR
In the event only one director is required by these Bylaws or the
Certificate of Incorporation, then any reference herein to notices, waivers,
consents, meetings or other actions by a majority or quorum of the directors
shall be deemed to refer to such as being given or taken by such sole director,
who shall have the rights and duties and shall be entitled to exercise all of
the powers and shall assume all the responsibilities otherwise herein described
as given to the Board of Directors.
3.17 NOMINATION OF DIRECTORS; STOCKHOLDERS' PROPOSALS AT ANNUAL OR
SPECIAL MEETINGS
Nominations of persons for election to the Board of Directors and the
proposal of business to be transacted by the stockholders may be made at an
annual meeting of stockholders (a) pursuant to the Corporation's notice with
respect to such meeting, (b) by or at the direction of the Board of Directors or
(c) by any stockholder of record of the Corporation who was a stockholder of
record at the time of the giving of the notice provided for in the following
paragraph, who is entitled to vote at the meeting and who has complied with the
notice procedures set forth in this Section 3.17.
For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (c) of the foregoing
paragraph, (1) the stockholder must have given timely notice thereof in writing
to the Secretary of the Corporation, (2) such business must be a proper matter
for stockholder action under the General Corporation Law of Delaware, (3) if the
stockholder, or the beneficial owner on whose behalf any such proposal or
nomination is made, has provided the Corporation with a Solicitation Notice, as
that term is defined in subclause (c)(iii) of this paragraph, such stockholder
or beneficial owner must, in the case of a proposal, have delivered a proxy
statement and form of proxy to holders of at least the percentage of the
Corporation's voting shares required under applicable law to carry any such
proposal, or, in the case of a nomination or nominations, have delivered a proxy
statement and form of proxy to holders of a percentage of the Corporation's
voting shares reasonably believed by such stockholder or beneficial holder to be
sufficient to elect the nominee or nominees proposed to be nominated by such
stockholder, and must, in either case, have included in such materials the
Solicitation Notice and (4) if no Solicitation Notice relating thereto has been
timely provided pursuant to this section, the stockholder or beneficial owner
proposing such business or nomination must not have solicited a number of
proxies sufficient to have required the delivery of such a Solicitation Notice
under this section. To be timely, a stockholder's notice shall be delivered to
the Secretary at the principal executive offices of the Corporation not less
than 90 nor more than 120 days prior to the anniversary date of the preceding
year's annual meeting of stockholders; provided, however, that if the date of
the annual meeting is advanced more than 30 days prior to or delayed by more
than 30 days after the anniversary of the preceding year's annual meeting,
notice by the stockholder to be timely must be so delivered not later than the
close of business on the later of (i) the 90th day prior to such annual
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meeting or (ii) the 10th day following the day on which public announcement of
the date of such meeting is first made. Such stockholder's notice shall be set
forth (a) as to each person whom the stockholder proposes to nominate for
election or reelection as a director all information relating to such person as
would be required to be disclosed in solicitations of proxies for the election
of such nominees as directors pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and such person's written
consent to serve as a director if elected; (b) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of such
business, 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; (c) as to the stockholder giving
the notice and the beneficial owner, 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 the Corporation that are owned beneficially and of record by such
stockholder and such beneficial owner, and (iii) whether either such stockholder
or beneficial owner intends to deliver a proxy statement and form of proxy to
holders of, in the case of a proposal, at least the percentage of the
Corporation's voting shares required under applicable law to carry the proposal
or, in the case of a nomination or nominations, a sufficient number of holders
of the Corporation's voting shares to elect such nominee or nominees (an
affirmative statement of such intent, a "Solicitation Notice").
Only persons nominated in accordance with the procedures set forth in
this Section 3.17 shall be eligible to serve as directors and only such business
shall be conducted at an annual meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
section. The chair of the meeting shall have the power and the duty to determine
whether a nomination or any business proposed to be brought before the meeting
has been made in accordance with the procedures set forth in these Bylaws and,
if any proposed nomination or business is not in compliance with these Bylaws,
to declare that such defective proposed business or nomination shall not be
presented for stockholder action at the meeting and shall be disregarded.
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 at which
directors are to be elected pursuant to the Corporation's notice of meeting (a)
by or at the direction of the Board of Directors or (b) by any stockholder of
record of the Corporation who is a stockholder of record at the time of giving
of notice provided for in this paragraph, who shall be entitled to vote at a
meeting and who complies with the notice procedures set forth in this Section
3.17. Nominations by stockholders of persons for election to the Board of
Directors may be made at such a special meeting of stockholders if the
stockholder's notice required by the second paragraph of this Section 3.17 shall
be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the later of the 90th day
prior to such special meeting or the 10th 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.
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For the purposes of this section, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or a 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.
3.18 ORGANIZATION
At every meeting of the Board of Directors, the Chairman of the Board,
or, if a Chairman of the Board has not been elected by the Board of Directors or
is absent, the Chief Executive Officer, or if the Chief Executive Officer is
absent, a chairman of the meeting chosen by a majority of the directors present
shall preside over the meeting. The Secretary of the Corporation shall act as
secretary of all meetings of the Board of Directors, but in the absence of the
Secretary at any meeting of the Board of Directors, the chairman of the meeting
may appoint any person to act as secretary of the meeting. The Chairman of the
Board, if such an officer be elected, shall, if present, preside at meetings of
the Board of Directors and exercise such other powers and perform such other
duties as may from time to time be assigned to him or her by the Board of
Directors or as may be prescribed by these Bylaws.
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS
The Board of Directors may, by resolution adopted by a majority of the
authorized number of directors, designate one or more committees, each
consisting of two or more directors, to serve at the pleasure of the Board. 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. The appointment of members or alternate members of a committee
requires the vote of a majority of the authorized number of directors. Any
committee, to the extent provided in the resolution of the Board, shall have and
may exercise all the powers and 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 expressly required by the General Corporation
Law of Delaware to be submitted to stockholders for approval or (ii) adopt,
amend or repeal any of the Bylaws of the Corporation.
4.2 MEETINGS AND ACTIONS OF COMMITTEES
Meetings and actions of committees shall be governed by, and held and
taken in accordance with, the following provisions of Article III of these
Bylaws: Section 3.6 (place of meetings; meetings by telephone), Section 3.7
(regular meetings), Section 3.8 (special meetings; 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 (Board action by written consent
without a meeting), with such changes in the content of those Bylaws as are
necessary to substitute the committee and its
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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.
4.3 COMMITTEE MINUTES
Each committee shall keep regular minutes of its meetings and report the
same to the Board of Directors when required.
ARTICLE V
OFFICERS
5.1 OFFICERS
The corporate officers of the Corporation shall be a Chief Executive
Officer, a President, a Secretary and a Chief Financial Officer or Treasurer.
The Corporation may also have, at the discretion of the Board of Directors, one
or more Executive or Senior Vice Presidents and such other officers as may be
appointed in accordance with the provisions of Section 5.3 of these Bylaws. Any
number of offices may be held by the same person.
In addition to the corporate officers of the Corporation described
above, there may also be such administrative officers of the Corporation,
including but not limited to one or more Vice Presidents, Assistant Secretaries,
or Assistant Treasurers, as may be designated and appointed from time to time by
the Chief Executive Officer or the President of the Corporation. Administrative
officers shall perform such duties, hold office for such periods and have such
powers as from time to time may be determined by the President, the Chief
Executive Officer or the Board of Directors to assist the corporate officers in
the furtherance of their duties. In the performance of such duties and the
exercise of such powers, however, such administrative officers shall have only
such limited authority to act on behalf of the Corporation as the Chief
Executive Officer or President shall establish, including but not limited to
limitations on the dollar amount and on the scope of agreements or commitments
that may be made by such administrative officers on behalf of the Corporation,
which limitations may not be exceeded by such individuals or altered without
further approval by the Chief Executive Officer or President.
5.2 ELECTION OF OFFICERS
The corporate officers of the Corporation, except such officers as may
be appointed in accordance with the provisions of Section 5.3 or Section 5.4 of
these Bylaws, shall be chosen by the Board of Directors, subject to the rights,
if any, of an officer under any contract of employment, and
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shall hold their respective offices for such terms as the Board of Directors may
from time to time determine.
5.3 REMOVAL AND RESIGNATION OF OFFICERS
Subject to the rights, if any, of a corporate officer under any contract
of employment, any corporate officer may be removed, either with or without
cause, by the Board of Directors at any regular or special meeting of the Board
or, except in case of a corporate officer chosen by the Board of Directors, by
any corporate officer upon whom such power of removal may be conferred by the
Board of Directors.
Any corporate officer may resign at any time by giving written notice to
the Corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice, and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the Corporation under any contract to which the corporate
officer is a party.
Subject to the rights, if any, of an administrative officer under any
contract of employment, any administrative officer designated and appointed by
the President may be removed, either with or without cause, at any time by the
President. Any administrative officer may resign at any time by giving written
notice to the President or to the Secretary of the Corporation, but without
prejudice to the rights, if any, of the Corporation under any contract to which
the administrative officer is a party.
5.4 VACANCIES IN OFFICES
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
these Bylaws for regular appointments to that office.
5.5 CHAIRMAN OF THE BOARD
The Chairman of the Board, if such an officer be elected, shall, if
present, preside at meetings of 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.
5.6 CHIEF EXECUTIVE OFFICER
The Chief Executive Officer of the Corporation shall, subject to the
control of the Board of Directors, have general supervision, direction and
control of the business and the officers of the Corporation. In the absence or
nonexistence of a Chairman of the Board, he or she shall preside at all meetings
of the stockholders and meetings of the Board of Directors. He or she shall have
the general powers and duties of management usually vested in the office of
chief executive officer of a corporation, and shall have such other powers and
perform such other duties as may be prescribed by the Board of Directors or
these Bylaws.
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5.7 PRESIDENT/CHIEF OPERATING OFFICER
The President shall be the chief operating officer of the Corporation
and, in the absence of the Chairman of the Board and the Chief Executive
Officer, shall preside at all meetings of the stockholders and the Board of
Directors. Subject to the authority granted for any such matters to the Chairman
of the Board or the Chief Executive Officer of the Corporation, the President
shall have general and active management of the business operations of the
Corporation and shall see that all orders of the Chairman of the Board and the
Chief Executive Officer and the resolutions of the Board of Directors are
carried into effect. In the absence of the Chairman of the Board and the Chief
Executive Officer and except where required or permitted by law to be otherwise
signed and except where the signing thereof shall be expressly delegated by the
Board of Directors to another officer or agent of the Corporation, the President
may make, execute, acknowledge and deliver any and all contracts, leases, deeds,
conveyances, assignments, bills of sale, transfers, releases and receipts, and
any and all mortgages, deeds of trust, indentures, pledges, chattel mortgages,
liens and hypothecations, and any and all bonds, debentures, notes, other
evidences of indebtedness and any and all other obligations and encumbrances and
any and all other instruments, documents and papers of any kind or character for
and on behalf of and in the name of the Corporation. The President shall further
perform such other duties and have such additional authority and powers as from
time to time may be assigned to or conferred upon him or her by the Board of
Directors.
5.8 VICE PRESIDENTS
In the absence or disability of the President, the Vice Presidents, if
any, in order of their rank as fixed by the Board of Directors or, if not
ranked, a Vice President designated by the Board of Directors, shall perform all
the duties of the President and when so acting shall have all the powers of, and
be subject to all the restrictions upon, the President. The Vice Presidents
shall have such other powers and perform such other duties as from time to time
may be prescribed for them respectively by the Board of Directors, these Bylaws,
the President or the Chairman of the Board.
5.9 SECRETARY
The Secretary shall keep or cause to be kept, at the principal executive
office of the Corporation or such other place as the Board of Directors may
direct, a book of minutes of all meetings and actions of the Board of Directors,
committees of directors and stockholders. The minutes shall show the time and
place of each meeting, whether regular or special (and, if special, how
authorized and the notice given), the names of those present at directors'
meetings or committee meetings, the number of shares present or represented at
stockholders' meetings and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal
executive office of the Corporation or at the office of the Corporation's
transfer agent or registrar, as determined by resolution of the Board of
Directors, a share register or a duplicate share register, showing the names of
all stockholders and their addresses, the number and classes of shares held by
each, the number and date of certificates evidencing such shares and the number
and date of cancellation of every certificate surrendered for cancellation.
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The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the Board of Directors required to be given by law or
by these Bylaws. He or she shall keep the seal of the Corporation, if one be
adopted, in safe custody and shall have such other powers and perform such other
duties as may be prescribed by the Board of Directors or by these Bylaws.
5.10 CHIEF FINANCIAL OFFICER
The Chief Financial Officer shall be the chief financial officer of the
Corporation and shall keep and maintain, or cause to be kept and maintained, in
a thorough and proper manner adequate and correct books and records of accounts
of the properties and business transactions of the Corporation, including
accounts of its assets, liabilities, receipts, disbursements, gains, losses,
capital, retained earnings and shares. The Chief Financial Officer shall render
statements of the financial affairs of the Corporation in such form and as often
as required by the Board of Directors, the Chief Executive Officer or the
President. The books of account shall at all reasonable times be open to
inspection by any director for a purpose reasonably related to his or her
position as a director.
The Chief Financial Officer, subject to the order of the Board of
Directors, shall have the custody of all funds and securities of the Corporation
and shall perform other such duties commonly incident to his or her office. The
Chief Financial Officer shall perform such other duties and have such other
powers as the Board of Directors, the Chief Executive Officer or the President
shall designate from time to time.
5.11 AUTHORITY AND DUTIES OF OFFICERS
In addition to the foregoing powers, authority and duties, all officers
of the Corporation shall respectively have such authority and powers and perform
such duties in the management of the business of the Corporation as may be
designated from time to time by the Board of Directors.
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 as the same now exists or may
hereafter be amended, indemnify any person against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred in connection with any threatened, pending or completed
action, suit, or proceeding in which such person was or is a party or is
threatened to be made a party by reason of the fact that such person is or was a
director or officer of the Corporation. For purposes of this Section 6.1, a
"director" or "officer" of the Corporation shall mean 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
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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 to the Corporation or of another enterprise
at the request of such predecessor corporation.
The Corporation shall be required to indemnify a director or officer in
connection with an action, suit, or proceeding (or part thereof) initiated by
such director or officer only if the initiation of such action, suit, or
proceeding (or part thereof) by the director or officer was authorized by the
Board of Directors of the Corporation.
The Corporation shall pay the expenses (including attorney's fees)
incurred by a director or officer of the Corporation entitled to indemnification
hereunder in defending any action, suit or proceeding referred to in this
Section 6.1 in advance of its final disposition; provided, however, that payment
of expenses incurred by a director or officer of the Corporation in advance of
the final disposition of such action, suit or proceeding shall be made only upon
receipt of an undertaking by the director or officer to repay all amounts
advanced if it should ultimately be determined that the director or officer is
not entitled to be indemnified under this Section 6.1 or otherwise.
The rights conferred on any person by this Article shall not be
exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, these Bylaws,
agreement, vote of the stockholders or disinterested directors or otherwise.
Any repeal or modification of the foregoing provisions of this Section
6.1 shall not adversely affect any right or protection hereunder of any person
in respect of any act or omission occurring prior to the time of such repeal or
modification.
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 as the same now
exists or may hereafter be amended, to indemnify any person (other than
directors and officers) against expenses (including attorneys' fees), judgments,
fines, and amounts paid in settlement actually and reasonably incurred in
connection with any threatened, pending or completed action, suit, or
proceeding, in which such person was or is a party or is threatened to be made a
party by reason of the fact that such person is or was an employee or agent of
the Corporation. For purposes of this Section 6.2, an "employee" or "agent" of
the Corporation (other than a director or officer) shall mean 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 to 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
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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 such capacity, or
arising out of his or her status as such, whether or not the Corporation would
have the power to indemnify him or her against such liability under the
provisions of the General Corporation Law of Delaware.
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 of its business and properties.
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 DIRECTORS
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.
7.3 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The stock and other securities of other corporations owned or held by
the Corporation for itself, or for other parties in any capacity, shall be
voted, and all proxies with respect thereto shall be executed, by the person
authorized to do so by resolution of the Board of Directors, or in the absence
of such authorization, by the Chairman of the Board, if any, the Chief Executive
Officer, the President, or any Executive or Senior Vice President, or any other
person authorized by the Board of Directors, the Chairman of the Board, if any,
the Chief Executive Officer or the President. 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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7.4 CERTIFICATION AND INSPECTION OF BYLAWS
The original or a copy of these Bylaws, as amended or otherwise altered
to date, certified by the Secretary, shall be kept at the Corporation's
principal executive office and shall be open to inspection by the stockholders
of the Corporation at all reasonable times during office hours.
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 change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix in advance a record date, which shall not precede
the date upon which the resolution fixing the record date is adopted and 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 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 of Directors adopts the applicable
resolution.
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS
From time to time, the Chief Executive Officer shall determine 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 Chief Executive Officer, except as otherwise provided in these
Bylaws, may authorize and empower 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 power and 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.
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8.4 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 201 of the General Corporation Law of
Delaware (relating to transfers of stock, stock certificates and uncertificated
stock), 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.
8.5 LOST CERTIFICATES
Except as provided in this Section 8.5, no new certificates for shares
shall be issued to replace a previously issued certificate unless the latter is
surrendered to the Corporation and cancelled at the same time. The Board of
Directors may, in case any share certificate or certificate for any other
security is lost, stolen or destroyed, authorize the issuance of replacement
certificates on such terms and conditions as the Board may require; the Board
may require indemnification of the Corporation secured by a bond or other
adequate security sufficient to protect the Corporation against any claim that
may be made against it, including any expense or liability, on account of the
alleged loss, theft or destruction of the certificate or the issuance of the
replacement certificate.
8.6 TRANSFER AGENTS AND REGISTRARS
The Board of Directors may appoint one or more transfer agents or
transfer clerks, and one or more registrars, each of which shall be appointed at
such times and places and for such consideration as the requirements of the
Corporation may necessitate and the Board of Directors may designate.
8.7 REGISTERED STOCKHOLDERS
The Corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends, and
to vote as such owner, and shall 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 shall have express or other notice thereof, except as
otherwise provided by the General Corporation Law of Delaware.
8.8 DIVIDENDS
Subject to the provisions of the Certificate of Incorporation, if any,
dividends upon the capital stock of the Corporation may be declared by the Board
of Directors pursuant to law at any
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regular or special meeting and may be paid in cash, in property, or in shares of
the capital stock of the Corporation. Payment of dividends on any partly-paid
shares shall be in accordance with Section 8.4 of these Bylaws. Before payment
of any dividend, there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors from time to
time, in their absolute discretion, think proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Corporation, or for such other purpose as the Board of
Directors shall think conducive to the interests of the Corporation, and the
Board of Directors may modify or abolish any such reserve in the manner in which
it was created.
8.9 FISCAL YEAR
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
8.10 PROVISIONS CONCERNING NOTICE
All notices given by mail shall be deemed to have been given at the time
of mailing, and all notices given by facsimile, telex or telegram shall be
deemed to have been given as of the sending time recorded at time of
transmission. An affidavit of mailing, executed by a duly authorized and
competent employee of the Corporation or its transfer agent appointed with
respect to the class of stock affected, specifying the name and address or the
names and addresses of the stockholder or stockholders, or director or
directors, to whom any such notice or notices was or were given, and the time
and method of giving the same shall, in the absence of fraud, be prima facie
evidence of the facts therein contained.
8.11 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, as used in these Bylaws, the singular number includes the plural, the
plural number includes the singular, and the term "person" includes both an
entity and a natural person.
ARTICLE IX
AMENDMENTS
The original or other Bylaws of the Corporation may be adopted, amended
or repealed by the Board of Directors. The fact that such power 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 pursuant to the Certificate
of Incorporation and the General Corporation Law of Delaware.
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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 date of the meeting at which the repeal
was enacted or the filing of the operative written consent(s) shall be stated in
the book of Bylaws.
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