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ADVANCED POWER TECHNOLOGY, INC.
A DELAWARE CORPORATION
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BYLAWS
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ARTICLE I
STOCKHOLDERS
Amended and Restated as May 31, 2000
Section 1.1 Annual Meeting.
An annual meeting of stockholders for the purpose of electing directors
and of transacting such other business as may come before it shall be held each
year at such date, time, and place, either within or without the State of
Delaware, as may be specified by the Board of Directors.
Section 1.2 Special Meetings.
Special meetings of stockholders for any purpose or purposes may be
held at any time upon call of the Chairman of the Board, the Vice Chairman, or
the President, at such time and place either within or without the State of
Delaware as may be stated in the notice.
Section 1.3 Notice of Meetings.
Written notice of duly called meetings of the stockholders, stating the
place, date, and hour thereof shall be given by the Chairman of the Board, the
Vice Chairman of the Board, the President, the Secretary or Assistant Secretary
to each stockholder entitled to vote thereat at least ten days but not more than
sixty days before the date of the meeting, unless a different period is
prescribed by law. The notice of an annual meeting shall state that the meeting
is called for the election of directors and for the transaction of other
business which may properly come before the meeting, and shall, if any other
action which could be taken at a special meeting is to be taken at such annual
meeting, state the nature of such action. The notice of a special meeting shall
in all instances state the purpose or purposes for which the meeting is called.
Section 1.4 Quorum.
Except as otherwise provided by law or in the Amended and Restated
Certificate of Incorporation or these Bylaws, at any meeting of stockholders the
holders of a majority of the outstanding shares of each class of stock entitled
to vote at the meeting shall be present or represented by proxy in order to
constitute a quorum for the transaction of any business. In the absence of a
quorum, a majority in voting interest of the stockholders present or the
chairman of
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the meeting may adjourn the meeting from time to time in the manner provided in
SECTION 1.5 of these Bylaws until a quorum shall be present.
Section 1.5 Adjournment.
Any meeting of stockholders, annual or special, may adjourn from time
to time to reconvene at the same or some other place, and notice need not be
given of any such adjourned meeting if the time and place thereof are announced
at the meeting at which the adjournment is taken. At any adjourned meeting at
which a quorum is present, any business may be transacted which might have been
transacted at the original meeting. If the adjournment is for more than thirty
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.
Section 1.6 Organization.
The Chairman of the Board, or in his or her absence the Vice Chairman
of the Board, or in their absence one of the following officers, the Chief
Executive Officer, the President, or a Vice President (in order of seniority),
shall call to order meetings of stockholders, and shall act as chairman of such
meetings. The Board of Directors or, if the Board fails to act, the
stockholders, may appoint any stockholder, director, or officer of the
Corporation to act as chairman of any meeting in the absence of the Chairman of
the Board, the Vice Chairman of the Board, the Chief Executive Officer, the
President, and all Vice Presidents. The Secretary of the Corporation shall act
as secretary of all meetings of stockholders, but, in the absence of the
Secretary, the chairman of the meeting may appoint any other person to act as
secretary of the meeting.
Section 1.7 Voting.
Except as otherwise provided by law or in the Amended and Restated
Certificate of Incorporation or these Bylaws, at any meeting duly called and
held at which a quorum is present corporate action to be taken by stockholder
vote, other than the election of directors, shall be authorized by a majority of
the votes cast at a meeting of stockholders. Directors shall be elected at each
annual meeting of stockholders by a plurality of the votes cast and shall hold
office until the next succeeding annual meeting of stockholders and until the
election of their respective successors.
Section 1.8 Action Without Meeting.
Any action required or permitted to be taken at any meeting of
stockholders may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not fewer than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voting.
Prompt notice of the taking of any such action shall be given to those
stockholders who did not consent in writing.
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Section 1.9 Proxy Representation.
Each stockholder entitled to vote at any meeting of stockholders or to
express consent to or dissent from corporate action in writing without a meeting
may authorize another person to act for him, her or it by proxy. No proxy shall
be valid after three years from its date, unless it provides otherwise.
Section 1.10 Stockholders.
(a) At an annual meeting of the stockholders, only
such business shall be conducted as shall have been brought before the meeting
(i) pursuant to the Corporation's notice of meeting, (ii) by or at the direction
of the Board of Directors or (iii) by a stockholder of the Corporation who is a
stockholder of record at the time of giving of the notice provided for in this
SECTION 1.10, who shall be entitled to vote at such meeting and who complies
with the notice procedures set forth in this SECTION 1.10.
(b) For business to be properly brought before an
annual meeting by a stockholder pursuant to clause (a)(iii) above, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than 120 calendar days in advance of the first anniversary date of the
mailing of the Corporation's proxy statement released to stockholders in
connection prior to the anniversary of the preceding year's annual meeting;
PROVIDED, HOWEVER, that in the event no annual meeting was held in the previous
year or the date of the meeting is changed by more than 30 days from the date
contemplated at the time of the previous year's proxy statement, notice by the
stockholder to be timely must be received no later than the close of business on
the earlier of the 10th day following the date on which notice of the date of
the meeting was mailed or a public announcement of the meeting was made.
(c) A stockholder's notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before the meeting (i)
a brief description of the business desired to be brought before the meeting and
the reasons for conducting such business at the meeting, (ii) the name and
address, as they appear on the Corporation's books of the stockholder proposing
such business, and the name and address of the beneficial owner, if any, on
whose behalf the proposal is made, (iii) the class and number of shares of stock
of the Corporation which are owned beneficially and of record by such
stockholder of record and by the beneficial owner, if any, on whose behalf the
proposal is made, and (iv) any material interest of such stockholder of record
and the beneficial owner, if any, on whose behalf the proposal is made, in such
business.
(d) Notwithstanding anything in this SECTION 1.10 to
the contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this SECTION 1.10. The chairman of
the meeting shall, if the facts warrant, determine and declare to the meeting
whether or not business was properly brought before the meeting in accordance
with the procedures prescribed by these Bylaws, and if (s)he should so
determine, (s)he shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted.
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(e) Notwithstanding the foregoing provisions of this
SECTION 1.10, a stockholder also shall comply with all applicable requirements
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, with respect to the matters set forth in this SECTION
1.10.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 Number and Term of Office.
The business, property, and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors of the Corporation. The
number of directors constituting the entire Board shall be not less than one (1)
nor more than seven (7) as fixed from time to time by vote of a majority of the
entire Board; PROVIDED, HOWEVER, that no decrease in the number of directors may
shorten the term of any incumbent director.
Section 2.2 Chairman and Vice Chairman of the Board.
The directors may elect a Chairman and a Vice Chairman of the Board of
Directors. The Chairman and Vice Chairman shall be subject to the control of and
may be removed by the Board of Directors.
Section 2.3 Meetings.
Regular meetings of the Board of Directors may be held without notice
at such time and place as shall from time to time be determined by the Board.
Special meetings of the Board of Directors shall be held at such time and place
as shall be designated in the notice of the meeting whenever called by the
Chairman of the Board, the Vice Chairman, the Chief Executive Officer (if a
director), the President (if a director) or by a majority of the directors then
in office.
Section 2.4 Notice of Special Meetings.
The Secretary, or in his or her absence any other officer of the
Corporation, shall give each director notice of the time and place of holding of
special meetings of the Board of Directors by mail at least seven days before
the meeting, or by telecopy, telegram, cable, radiogram, or by certified mail
with return receipt requested, by a nationally recognized courier, or by
personal service at least two days before the meeting. Unless otherwise stated
in the notice thereof, any and all business may be transacted at any meeting
without specification of such business in the notice.
Section 2.5 Quorum and Organization of Meetings.
Except as provided in SECTION 4.3 of these Bylaws, a majority of the
total number of members of the Board of Directors as constituted from time to
time shall constitute a quorum for the transaction of business, but, if at any
meeting of the Board of Directors (whether or not adjourned from a previous
meeting) there shall be less than a quorum present, a majority of those present
may adjourn the meeting to another time and place, and the meeting may be held
as
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adjourned without further notice or waiver. Except as otherwise provided by law
or in the Amended and Restated Certificate of Incorporation or these Bylaws, a
majority of the directors present at any meeting at which a quorum is present
may decide any question brought before such meeting. Meetings shall be presided
over by the Chairman of the Board, or in his or her absence, by the Vice
Chairman, the Chief Executive Officer, the President, or such other person as
the directors may select. The Secretary of the Corporation 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.
Section 2.6 Committees.
The Board of Directors may, by resolution adopted by a majority of the
whole Board, designate one or more committees, each committee to consist of one
or more of the directors of the Corporation; provided, that persons who are not
directors of the Corporation may also be members of such committees to the
extent provided in the resolution of the Board. The Board may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not they
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
Board of Directors and permitted by law, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the
business, property, and affairs of the Corporation, and may authorize the seal
of the Corporation to be affixed to all papers which may require it. Each
committee of the Board of Directors may fix its own rules and procedures. Notice
of meetings of committees, other than of regular meetings provided for by the
rules, shall be given to committee members. All action taken by committees shall
be recorded in minutes of the meetings.
Section 2.7 Action Without Meeting.
Nothing contained in these Bylaws shall be deemed to restrict the power
of members of the Board of Directors or any committee designated by the Board to
take any action required or permitted to be taken by them without a meeting, if
all the members of the Board of Directors or committee, as the case may be,
consent in writing to the adoption, and the writing or writings are filed with
the minutes of proceedings of the Board or Committee.
Section 2.8 Fees and Compensation of Directors.
Unless otherwise restricted by law, the Amended and Restated
Certificate of Incorporation or these Bylaws, the Board of Directors shall have
the authority to fix the compensation of Directors.
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Section 2.9 Telephone Meetings.
Nothing contained in these Bylaws shall be deemed to restrict the power
of members of the Board of Directors, or any committee designated by the Board,
to participate in a meeting of the Board, or a committee thereof, by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other.
ARTICLE III
OFFICERS
Section 3.1 Executive Officers.
The executive officers of the Corporation shall be the Chairman of the
Board, the Vice Chairman of the Board the Chief Executive Officer, the
President, one or more Vice Presidents, the Treasurer, and the Secretary, each
of whom shall be elected by the Board of Directors. The Board of Directors may
elect or appoint such other officers (including a Controller and one or more
Assistant Treasurers and Assistant Secretaries) as it may deem necessary or
desirable. Each officer shall hold office for such term as may be prescribed by
the Board of Directors from time to time. Any person may hold at one time two or
more offices.
Section 3.2 Chairman of the Board.
The Chairman of the Board shall preside at all meetings of the
stockholders and of the Board of Directors.
Section 3.3 Vice Chairman of the Board.
The Vice Chairman of the Board shall, at the request, or in the absence
or disability, of the Chairman of the Board, perform the duties and exercise the
powers of such office.
Section 3.4 Chief Executive Officer.
The Chief Executive Officer of the Corporation shall have general
supervision of the business, affairs and property of the Corporation, and over
its several officers. In general, the Chief Executive Officer shall have all
authority incident to the office of Chief Executive Officer and shall have such
other authority and perform such other duties as may from time to time be
assigned by the Board of Directors or by any duly authorized committee of
directors. The Chief Executive Officer hall have the power to fix the
compensation of elected officers whose compensation is not fixed by the Board of
Directors or a committee thereof and also to engage, discharge, determine the
duties and fix the compensation of all employees and agents of the Corporation
necessary or proper for the transaction of the business of the Corporation. If
the Chief Executive Officer is not also the Chairman of the Board, then the
Chief Executive Officer shall report to the Chairman of the Board or the Vice
Chairman, as the case may be.
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Section 3.5 President.
The President shall be the chief operating officer of the Corporation
and, subject to the direction of the Board of Directors, or any duly authorized
committee of directors, shall have general supervision of the operations of the
Corporation. In general, but subject to any contractual restriction, the
President shall have all authority incident to the office of President and chief
operating officer and shall have such other authority and perform such other
duties as may from time to time be assigned by the Board of Directors or by any
duly authorized committee of directors or by the Chairman of the Board of
Directors. The President shall, at the request or in the absence or disability
of the Chairman or Vice Chairman of the Board, or the Chief Executive Officer,
or if no Chairman or Vice Chairman of the Board or Chief Executive Officer has
been appointed by the Board of Directors, perform the duties and exercise the
powers of such officer or officers.
Section 3.6 Vice Presidents.
Each vice president shall have such powers and duties as the Board, the
Chief Executive Officer or the President assigns to him or her.
Section 3.7 Treasurer.
The Treasurer of the Corporation shall be in charge of the
corporation's books and accounts. Subject to the control of the Board, (s)he
shall have such other powers and duties as the Board, the Chief Executive
Officer or the President assigns to him or her.
Section 3.8 Secretary.
The Secretary shall be the secretary of and keep the minutes of all
meetings of the Board and the stockholders, and shall have such other powers and
duties as the Board or the President assigns to him or her. In the absence of
the Secretary from any meeting, the minutes shall be kept by the person
appointed for that purpose by the chairman of the meeting.
ARTICLE IV
RESIGNATIONS, REMOVALS, AND VACANCIES
Section 4.1 Resignations.
Any director or officer of the Corporation, or any member of any
committee, may resign at any time by giving written notice to the Board of
Directors, the Chief Executive Officer, the President, or the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein or, if the time be not specified therein, then upon receipt thereof. The
acceptance of such resignation shall not be necessary to make it effective.
Section 4.2 Removals.
The Board of Directors, by a vote of not less than a majority of the
entire Board, at any meeting thereof, or by written consent, at any time, may,
to the extent permitted by law, remove
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with or without cause from office or terminate the employment of any officer or
member of any committee and may, with or without cause, disband any committee.
Any director or the entire Board of Directors may be removed, with or without
cause, by the holders of a majority of the shares entitled at the time to vote
at an election of directors.
Section 4.3 Vacancies.
Any vacancy in the office of any director or officer through death,
resignation, removal, disqualification, or other cause, and any additional
directorship resulting from increase in the number of directors, shall be filled
at any time exclusively by a majority of the directors then in office (even
though less than a quorum remains) and, subject to the provisions of this
ARTICLE IV, the person so chosen shall hold office until his or her successor
shall have been elected; or, if the person so chosen is a director elected to
fill a vacancy, (s)he shall (subject to the provisions of this ARTICLE IV) hold
office for the unexpired term of his or her predecessor.
ARTICLE V
CAPITAL STOCK
Section 5.1 Stock Certificates.
The certificates for shares of the capital stock of the Corporation
shall be in such form as shall be prescribed by law and approved, from time to
time, by the Board of Directors. Each certificate shall be signed by the
Chairman or Vice Chairman of the Board of Directors, if any, or by the Chief
Executive Officer or the President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Corporation. Any and
all signatures on any such certificates may be facsimiles. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate issued, it may be issued by the
Corporation with the same effect as if (s)he were such officer, transfer agent,
or registrar at the date of issue.
Section 5.2 Transfer of Shares.
Upon compliance with provisions restricting the transfer or
registration of transfer of shares of capital stock, if any, shares of the
capital stock of the Corporation may be transferred on the books of the
Corporation only by the holder of such shares or by his or her duly authorized
attorney, upon the surrender to the Corporation or its transfer agent of the
certificate representing such stock properly endorsed and the payment of taxes
due thereon.
Section 5.3 List of Stockholders Entitled to Vote.
The officer who has charge of the stock ledger of a 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 a place within the city where the meeting is to be held,
which place shall be specified in the notice
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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. Such list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by
each of them.
Section 5.4 Fixing Record Date.
In order that the corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to express consent in to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action.
If the board of directors does not so fix a record date:
(i) The record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held.
(ii) The record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting,
when no prior action by the board of directors is necessary, shall be the first
date on which a signed written consent is delivered to the corporation.
(iii) The record date for determining stockholders
for any other purpose shall be at the close of business on the day on which the
board of directors adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
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Section 5.5 Lost Certificates.
The Board of Directors or any transfer agent of the Corporation may
direct one or more new certificate(s) representing stock of the Corporation to
be issued in place of any certificate or certificates theretofore issued by the
Corporation, alleged to have been lost, stolen, or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate to be lost,
stolen, or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors (or any transfer agent of the Corporation
authorized to do so by a resolution of the Board of Directors) may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen, or destroyed certificate or certificates, or his
legal representative, to give the Corporation a bond in such sum as the Board of
Directors (or any transfer agent so authorized) shall direct to indemnify the
Corporation against any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen, or destroyed or
the issuance of such new certificates, and such requirement may be general or
confined to specific instances.
Section 5.6 Regulations.
The Board of Directors shall have power and authority to make all such
rules and regulations as it may deem expedient concerning the issue, transfer,
registration, cancellation, and replacement of certificates representing stock
of the Corporation.
ARTICLE VI
INDEMNITY
Section 6.1 Third Party Actions
The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was 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 expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement (if such settlement is
approved in advance by the corporation, which approval shall not be unreasonably
withheld) actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which the person reasonably believed to be in or not
opposed to the best interest of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that the person's
conduct was unlawful.
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Section 6.2 Actions By Or In The Right Of The Corporation
The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person is or was a director, officer, employee or
agent of 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 expenses (including attorneys'
fees) and amounts paid in settlement (if such settlement is approved in advance
by the corporation, which approval shall not be unreasonably withheld) actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith and in
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper. Notwithstanding any other
provision of this ARTICLE VI, no person shall be indemnified hereunder for any
expenses or amounts paid in settlement with respect to any action to recover
short-swing profits under Section 16(b) of the Securities Exchange Act of 1934,
as amended.
Section 6.3 Successful Defense
To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in SECTIONS 6.1 AND 6.2, or in defense of
any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
Section 6.4 Determination Of Conduct
Any indemnification under Sections 6.1 and 6.2 (unless ordered by a
court) shall be made by the corporation only as authorized in the specific case
upon a determination that the indemnification of the director, officer, employee
or agent is proper in the circumstances because such person has met the
applicable standard of conduct set forth in SECTIONS 6.1 AND 6.2. Such
determination shall be made (1) by the board of directors or the executive
committee by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding or (2) or 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, or (3) by the
stockholders. Notwithstanding the foregoing, a director, officer, employee or
agent of the corporation shall be entitled to contest any determination that the
director, officer, employee or agent has not met the applicable standard of
conduct set forth in SECTIONS 6.1 AND 6.2 by petitioning a court of competent
jurisdiction.
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Section 6.5 Payment Of Expenses In Advance
Expenses incurred in defending a civil or criminal action, suit or
proceeding, by an individual who may be entitled to indemnification pursuant to
SECTION 6.1 OR 6.2, shall be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of the director, officer, employee or agent to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in this ARTICLE VI.
Section 6.6 Indemnity Not Exclusive
The indemnification and advancement of expenses provided by or granted
pursuant to the other sections of this ARTICLE VI shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
Section 6.7 Insurance Indemnification
The corporation shall have the power to 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 such
person and incurred by such person in any such capacity or arising out of such
person's status as such, whether or not the corporation would have the power to
indemnify such person against such liability under the provisions of this
ARTICLE VI.
Section 6.8 The Corporation
For purposes of this ARTICLE VI, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under and subject to the provisions of this ARTICLE VI (including,
without limitation the provisions of SECTION 6.4) with respect to the resulting
or surviving corporation as such person would have with respect to such
constituent corporation if its separate existence had continued.
Section 6.9 Employee Benefit Plans
For purposes of this ARTICLE VI, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
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imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this ARTICLE
VI.
Section 6.10 Continuation Of Indemnification And Advancement Of
Expenses
The indemnification and advancement of expenses provided by, or granted
pursuant to, this ARTICLE VI shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Corporate Seal.
The corporate seal shall have inscribed thereon the name of the
Corporation and shall be in such form as may be approved from time to time by
the Board of Directors.
Section 7.2 Fiscal Year.
The fiscal year of the Corporation shall be determined by resolution of
the Board of Directors.
Section 7.3 Notices and Waivers Thereof.
Whenever any notice is required by law, the Amended and Restated
Certificate of Incorporation, or these Bylaws to be given to any stockholder,
director, or officer, such notice, except as otherwise provided by law, may be
given personally, or by mail, or, in the case of directors or officers, by
telecopy, telegram, cable, or radiogram, or by certified mail with return
receipt requested, by a nationally recognized courier, addressed to such address
as appears on the books of the Corporation. Any notice given by telecopy,
telegram, cable, radiogram, by certified mail with return receipt requested, or
by a nationally recognized courier shall be deemed to have been given when it
shall have been delivered for transmission and any notice given by mail shall be
deemed to have been given when it shall have been deposited in the United States
mail with postage thereon prepaid.
Whenever any notice is required to be given by law, the Amended and
Restated Certificate of Incorporation, or these Bylaws, a written waiver
thereof, signed by the person entitled to such notice, whether before or after
the meeting or the time stated therein, shall be deemed equivalent in all
respects to such notice to the full extent permitted by law.
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Section 7.4 Maintenance And Inspection Of Records.
The corporation shall, either at its principal executive officer 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 so to 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.
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, 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 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.
Section 7.5 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 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.
Section 7.6 Stock of Other Corporations or Other Interests.
Unless otherwise ordered by the Board of Directors, the Chairman of the
Board, the Vice Chairman of the Board, the Chief Executive Officer or the
President, and such attorneys or agents of the Corporation as may from time to
time be authorized by the Board of Directors or the Chairman of the Board shall
have full power and authority on behalf of this Corporation to attend and to act
and vote in person or by proxy at any meeting of the holders of securities of
any corporation or other entity in which this Corporation may own or hold shares
or other securities,
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and at such meetings shall possess and may exercise all the rights and powers
incident to the ownership of such shares or other securities which this
Corporation, as the owner or holder thereof, might have possessed and exercised
if present. The Chairman of the Board, the Vice Chairman of the Board, the Chief
Executive Officer or President, or such attorneys or agents, may also execute
and deliver on behalf of this Corporation powers of attorney, proxies, consents,
waivers, and other instruments relating to the shares or securities owned or
held by this Corporation.
ARTICLE VIII
AMENDMENTS
The Board of Directors shall have the power to adopt, amend, or repeal
these Bylaws.
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