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Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
SYBRON DENTAL SPECIALTIES, INC.
A DELAWARE CORPORATION
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TABLE OF CONTENTS
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ARTICLE I OFFICES...............................................................................................1
Section 1. Registered Office and Agent............................................................1
Section 2. Other Offices..........................................................................1
ARTICLE II STOCKHOLDERS.........................................................................................1
Section 1. Meetings...............................................................................1
Section 2. Annual Meeting.........................................................................2
Section 3. Special Meeting........................................................................2
Section 4. List of Stockholders...................................................................2
Section 5. Record Date............................................................................2
Section 6. Meeting Notice.........................................................................2
Section 7. Notice of Stockholder Business.........................................................3
Section 8. Quorum.................................................................................4
Section 9. Voting.................................................................................4
Section 10. Proxy..................................................................................4
Section 11. Inspectors of Election.................................................................5
ARTICLE III BOARD OF DIRECTORS..................................................................................5
Section 1. Board of Directors.....................................................................5
Section 2. Number of Directors....................................................................5
Section 3. Removal; Vacancies.....................................................................6
Section 4. Resignation............................................................................6
Section 5. Stockholder Nomination of Director Candidates..........................................6
ARTICLE IV MEETINGS OF THE BOARD................................................................................7
Section 1. Meetings...............................................................................7
Section 2. Annual Meeting.........................................................................8
Section 3. Regular Meetings.......................................................................8
Section 4. Special Meetings.......................................................................8
Section 5. Quorum.................................................................................8
Section 6. Committees.............................................................................8
Section 7. Action by Consent......................................................................8
Section 8. Compensation of Directors..............................................................9
ARTICLE V NOTICE OF MEETINGS....................................................................................9
Section 1. Form of Notice.........................................................................9
Section 2. Waiver.................................................................................9
ARTICLE VI OFFICERS.............................................................................................9
Section 1. General................................................................................9
Section 2. Election..............................................................................10
Section 3. Salaries..............................................................................10
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Section 4. Term of Office, Resignation and Removal...............................................10
Section 5. Chairman of the Board.................................................................10
Section 6. Chief Executive Officer...............................................................10
Section 7. President.............................................................................10
Section 8. Vice Presidents.......................................................................11
Section 9. Secretary.............................................................................11
Section 10. Treasurer.............................................................................11
Section 11. Assistant and Acting Officers and Agents..............................................11
Section 12. Bonding...............................................................................12
ARTICLE VII CERTIFICATES OF SHARES.............................................................................12
Section 1. Form of Certificates..................................................................12
Section 2. Signatures on Certificates............................................................12
Section 3. Lost Certificates.....................................................................12
Section 4. Transfer of Shares....................................................................13
Section 5. Registered Stockholders...............................................................13
ARTICLE VIII INDEMNITY.........................................................................................13
Section 1. Indemnification in Actions, Suits and Proceedings Other Than Those By or in the Right
of the Company........................................................................13
Section 2. Power to Indemnify in Actions, Suits and Proceedings By or in the Right
of the Company.......................................................................13
Section 3. Authorization and Payment of Indemnification..........................................14
Section 4. Expenses Payable in Advance...........................................................14
Section 5. Nonduplication........................................................................15
Section 6. Indemnification of Employees and Agents...............................................15
Section 7. Nonexclusivity........................................................................15
Section 8. Insurance.............................................................................15
Section 9. Court-Ordered Indemnification.........................................................16
Section 10. Liberal Construction..................................................................16
Section 11. Certain Definitions Applicable to this Article........................................16
Section 12. Amendments............................................................................17
ARTICLE IX GENERAL PROVISIONS..................................................................................17
Section 1. Dividends.............................................................................17
Section 2. Fiscal Year...........................................................................17
Section 3. Seal..................................................................................17
Section 4. Corporate Records.....................................................................17
Section 5. Amendments............................................................................18
Section 6. Description of Board..................................................................18
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AMENDED AND RESTATED
BYLAWS
OF
SYBRON DENTAL SPECIALTIES, INC.
A DELAWARE CORPORATION
PREAMBLE
These Amended and Restated Bylaws (herein, and as amended or restated from
time to time, the "Bylaws") are subject to and governed by the General
Corporation Law of the State of Delaware (the "DGCL") and the Restated
Certificate of Incorporation of Sybron Dental Specialties, Inc. (formerly SDS
Holding Co.), a Delaware corporation (the "Company"). In the event of a direct
conflict between the provisions of these Bylaws and the mandatory provisions of
the DGCL or the provisions of the Restated Certificate of Incorporation of the
Company (herein, and as amended or restated from time to time, the "Certificate
of Incorporation"), such provisions of the DGCL or the Certificate of
Incorporation, as the case may be, will control.
ARTICLE I
OFFICES
Section 1. Registered Office and Agent. The registered office and agent of
the Company shall be as is designated in the Certificate of Incorporation. The
location of the Company's registered office and the identity of its registered
agent may be changed from time to time in accordance with the provisions of the
DGCL.
Section 2. Other Offices. The Company may also have offices at such other
places both within and without the State of Delaware as the Board of Directors
may from time to time determine or the business of the Company may require.
ARTICLE II
STOCKHOLDERS
Section 1. Meetings. All meetings of the stockholders shall be held at the
principal office of the Company or at such other place within or without the
State of Delaware as may be determined from time to time by the Board of
Directors; provided, however, that the Board of Directors may, in its sole
discretion, determine that the meeting shall not be held at any place, but
instead shall be held solely by means of remote communication.
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Section 2. Annual Meeting. An annual meeting of the stockholders shall be
held during each fiscal year of the Company on a date and at such time as may be
fixed by or under the authority of the Board of Directors; provided, however, if
the date so selected is a legal holiday, then the annual meeting shall be held
on the next secular day following such date. At each annual meeting, the
stockholders shall elect Directors and transact such other business as may
properly be brought before the meeting.
Section 3. Special Meeting. A special meeting of the stockholders may be
called by the Board of Directors pursuant to a resolution adopted by a majority
of the members of the Board or by the Chairman of the Board. A special meeting
shall be held on such date and at such time as shall be designated by the person
calling the meeting, as stated in the notice of the meeting given in accordance
with these Bylaws or in a duly executed waiver of such notice. Only such
business as may be stated in the notice of a special meeting given in accordance
with these Bylaws, or in a duly executed waiver of such notice, shall be
transacted at the meeting.
Section 4. List of Stockholders. At least ten days before each meeting of
stockholders, the officer or agent having charge of the stock transfer books of
the Company shall prepare a complete list of the stockholders entitled to vote
at the meeting, arranged in alphabetical order and showing the address of and
the number of voting 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, for a period of at least ten days prior to the meeting,
either: (a) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with the notice of
the meeting; or (b) during ordinary business hours at the principal place of
business of the Company. If the meeting is to be held at a place, then such list
shall 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. If the
meeting is to be held solely by means of remote communication, then such list
shall also be open to the examination of any stockholder during the whole time
of the meeting on a reasonably accessible electronic network and the information
required to access such list shall be provided with the notice of the meeting.
Section 5. Record Date. The Board of Directors may fix in advance a record
date for the purpose of determining the stockholders entitled to notice of or to
vote at any meeting of stockholders, which date shall be not more than sixty nor
less than ten days prior to the date of such meeting. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6. Meeting Notice. Written notice stating the place, if any, day
and hour of any meeting of the stockholders and the means of remote
communication, if any, by which stockholders and proxy holders may be deemed to
be present in person and vote at such meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be given
not less than ten nor more than sixty days before the date of the meeting to
each stockholder entitled to vote at the meeting. If a meeting is adjourned for
more than thirty days,
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or if after an adjournment a new record date is fixed for the adjourned meeting,
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section 7. Notice of Stockholder Business.
(a) At any annual or special meeting of the stockholders, and other
than with respect to the election of Directors, which shall be governed by
Article III, Section 5, of these Bylaws and not by this Section 7, only such
business shall be conducted as shall have been brought before the meeting (i)
pursuant to the Company's notice of meeting, (ii) by or at the direction of the
Board of Directors, or (iii) by any stockholder of the Company who is a
stockholder of record at the time of giving the notice provided for in Section
7(b) of this Article II, who shall be entitled to vote at such meeting, and who
complies with the notice procedures set forth in such Section 7(b).
(b) For business to be properly brought before an annual or special
meeting by a stockholder pursuant to Section 7(a)(iii) of this Article II, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Company. Subject to subsection (d) of this Section 7, in order to be timely,
a stockholder's notice must be received at the principal executive offices of
the Company: (i) in the case of an annual meeting, not less than sixty days nor
more than ninety days prior to the first anniversary of the preceding year's
annual meeting; provided, however, that in the event that the date of the annual
meeting is more than thirty days prior to or following such anniversary date,
notice by the stockholder to be timely must be received no later than the close
of business on the tenth day following the earlier of the day on which notice of
the date of the meeting was given or public disclosure of the meeting date was
made; and (ii) in the case of a special meeting, no later than the close of
business on the tenth day following the earlier of the day on which notice of
the date of the meeting was given or public disclosure of the meeting date was
made. 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 Company'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 the Company 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 in such business of such stockholder of record and the
beneficial owner, if any, on whose behalf the proposal is made.
(c) Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at any meeting of stockholders except in accordance
with the procedures set forth in this Section 7. The Chairman of the meeting
shall, if the facts warrant, determine and declare to the meeting that business
was not properly brought before the meeting in accordance with the procedures
prescribed by this Section 7 and any such business shall not be transacted.
(d) Notwithstanding the foregoing provisions of this Section 7, a
stockholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, as
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amended, and the rules and regulations thereunder with respect to the matters
set forth herein and notice of business to be brought before any meeting shall
be deemed timely if received by the Company in time to be considered for
inclusion in the Company's proxy material relating to the meeting in accordance
with the applicable proxy rules of the Securities and Exchange Commission.
Section 8. Quorum. A majority of the shares issued and outstanding and
entitled to vote, present in person or represented by proxy, shall constitute a
quorum for the transaction of business at any meeting of the stockholders,
unless otherwise provided by the DGCL, the Certificate of Incorporation or these
Bylaws. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have the power to adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present or represented. Any business which might have been
transacted at the meeting as originally noticed may be transacted at any such
adjourned meeting at which a quorum is present or represented.
Section 9. Voting. Each outstanding share, regardless of class or series,
shall be entitled to one vote on each matter submitted to a vote at a meeting of
stockholders, except to the extent that the voting rights of the shares of any
class or series are enlarged, limited or denied by or pursuant to the
Certificate of Incorporation. In all matters other than the election of
Directors, the affirmative vote of a majority of the votes entitled to be cast
by all shares present in person or represented by proxy at a meeting at which a
quorum is present shall decide any questions brought before such meeting unless
the question is one upon which, by express provision of the DGCL, the
Certificate of Incorporation or these Bylaws, a different vote is required, in
which case such express provision shall control. Directors shall be elected by a
plurality of the votes cast by the shares present in person or represented by
proxy at a meeting at which a quorum is present; i.e., the individuals with the
largest number of votes in favor of their election are elected as Directors up
to the maximum number of Directors to be chosen in the election. Once a share is
represented for any purpose at a meeting, other than for the purpose of
objecting to the holding of the meeting or to the transaction of business at the
meeting, it is considered present for purposes of determining whether a quorum
exists for the remainder of the meeting and for any adjournment of the meeting
unless a new record date is or must be fixed for the meeting.
Section 10. Proxy. At any meeting of the stockholders, every stockholder
having the right to vote shall be entitled to vote either in person or by proxy.
If a stockholder entitled to vote at a meeting authorizes another person to act
for such stockholder by proxy, such proxy may not be voted or acted upon after
three years from its date unless the proxy provides for a longer period. A proxy
may be given by a written instrument executed by or on behalf of the stockholder
entitled to vote or through an electronic transmission which either sets forth
or is submitted with information from which it can be determined that the
electronic transmission was authorized by the stockholder entitled to vote. The
original or a reliable reproduction of any such proxy shall be filed with the
Secretary of the Company at or prior to the time of the meeting. A duly executed
proxy shall be irrevocable if it states that it is irrevocable and if, and only
as long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may
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be made irrevocable regardless of whether the interest with which it is coupled
is an interest in the stock itself or an interest in the Company generally.
Section 11. Inspectors of Election. The Board of Directors shall, in
advance of any meeting of stockholders, appoint one or more inspectors to act at
the meeting and make a written report thereof. Each inspector, before
discharging the duties of inspector, shall take and sign an oath faithfully to
execute such duties with strict impartiality and according to the best of such
inspector's ability. The inspector or inspectors so appointed or designated
shall: (a) ascertain the number of shares outstanding and the voting power of
each; (b) determine the shares represented at the meeting and the validity of
proxies and ballots; (c) count all votes and ballots; (d) determine and retain
for a reasonable period a record of the disposition of any challenges made to
any determination by the inspectors; and (e) certify their determination of the
number of shares represented at the meeting and their count of all votes and
ballots.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Board of Directors. The business and affairs of the Company
shall be managed by or under the direction of its Board of Directors, except as
may be otherwise provided by the DGCL or the Certificate of Incorporation.
Section 2. Number of Directors. The number of Directors constituting the
entire Board of Directors shall be fixed from time to time by resolution adopted
by a majority of the members of the Board, provided that such number shall be no
less than six and no more than nine (plus such number of Directors if any, as
may be elected from time to time pursuant to the terms of any Preferred Stock
that may be issued and outstanding from time to time). The Directors of the
Company shall be divided into three classes ("Class I," "Class II,"and "Class
III"), as nearly equal in number as possible, as determined by the Board of
Directors. The term of office of the Class I Directors shall expire at the 2001
annual meeting of stockholders; the term of office of the Class II Directors
shall expire at the 2002 annual meeting of stockholders; and the term of office
of the Class III Directors shall expire at the 2003 annual meeting of
stockholders. Each such Director shall hold office until his or her successor
shall have been duly elected and qualified or until such Director's earlier
death, resignation or removal. At each annual meeting of stockholders commencing
with the 2001 annual meeting, Directors elected to succeed those Directors whose
terms then expire shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders after their election, with each
Director to hold office until his or her successor shall have been duly elected
and qualified or until such Director's earlier death, resignation or removal.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Company shall have the right,
voting separately by class or series, to elect Directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies and
other features of such directorships shall be governed by the terms of the
Certificate of Incorporation or the resolution or resolutions adopted by the
Board
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of Directors pursuant to the Certificate of Incorporation and applicable
thereto, and such Directors so elected shall not be divided into classes
pursuant to this Section 2 unless expressly provided by such terms.
Section 3. Removal; Vacancies. Any Director may be removed for cause at any
special meeting of stockholders by the affirmative vote of a majority in number
of the shares then entitled to vote in person or by proxy at an election of
Directors, provided that notice of the intention to act upon such matter shall
have been given in the notice calling such meeting. Newly created directorships
resulting from any increase in the authorized number of Directors and any
vacancies occurring in the Board of Directors may be filled by the vote of a
majority of the members of the Board of Directors, though less than a quorum, or
by a sole remaining Director. Notwithstanding the foregoing, whenever the
holders of one or more classes or series of Preferred Stock issued by the
Company shall have the right, voting separately by class or series, to elect a
Director to the directorship which is newly created or vacant, such newly
created directorship or vacancy may only be filled by a majority of the
Directors elected by such class or series then in office or by a sole remaining
Director so elected. If the Company at any time has no Directors in office, then
any officer or any stockholder may call a special meeting of the stockholders
for the purpose of electing Directors. Any successor Directors chosen as
described in this Section 3 shall hold office until the next election of the
class for which such Directors shall have been chosen and until their successors
shall be elected and qualified.
Section 4. Resignation. A Director may resign at any time by giving notice
in writing or by electronic transmission to the Board of Directors or the
Chairman of the Board. Such resignation shall take effect at the date of receipt
of such notice or at any later time specified therein; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective. If any such resignation is effective as of a future date, a
majority of the Directors then in office, including any Directors who have so
resigned, shall have the power to fill such vacancy or vacancies in accordance
with Section 3 of this Article III, the vote thereon to take effect when such
resignations become effective.
Section 5. Stockholder Nomination of Director Candidates.
(a) Only persons who are nominated in accordance with the procedures
set forth in this Section 5 shall be eligible to serve as Directors. Nominations
of persons for election to the Board of Directors of the Company may be made at
a meeting of stockholders (i) by or at the direction of the Board of Directors
or (ii) by any stockholder of the Company who is a stockholder of record at the
time of giving the notice provided for in Section 5(b) of this Article III, who
shall be entitled to vote for the election of Directors at the meeting, and who
complies with the notice procedures set forth in such Section 5(b).
(b) Nominations by stockholders shall be made pursuant to timely
notice in writing to the Secretary of the Company. Subject to subsection (d) of
this Section 5, in order to be timely, a stockholder's notice must be received
at the principal executive offices of the Company: (i) in the case of an annual
meeting, not less than sixty days nor more than ninety days prior to the first
anniversary of the preceding year's annual meeting; provided, however,
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that in the event that the date of the annual meeting is more than thirty days
prior to or following such anniversary date, notice by the stockholder to be
timely must be received no later than the close of business on the tenth day
following the earlier of the day on which notice of the date of the meeting was
given or public disclosure of the meeting date was made; and (ii) in the case of
a special meeting at which Directors are to be elected, no later than the close
of business on the tenth day following the earlier of the day on which notice of
the date of the meeting was given or public disclosure of the meeting date was
made. Such stockholder's notice shall set forth: (i) as to each person whom the
stockholder proposes to nominate for election or reelection as a Director, all
information relating to such person that is required to be disclosed in
solicitations of proxies for elections of directors, or is otherwise required,
in each case pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a Director if elected); and (ii)
as to the stockholder giving the notice (A) the name and address, as they appear
on the Company's books, of such stockholder and the name and address of the
beneficial owner, if any, on whose behalf the nomination is made, and (B) the
class and number of shares of the Company which are owned beneficially and of
record by such stockholder and by the beneficial owner, if any, on whose behalf
the nomination is made. At the request of the Board of Directors, any person
nominated by the Board of Directors for election as a Director shall furnish to
the Secretary of the Company that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee.
(c) Notwithstanding anything in this Section 5 to the contrary, no
person shall be eligible to serve as a Director of the Company unless nominated
in accordance with the procedures set forth in this Section 5. The Chairman of
the meeting shall, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the procedures prescribed by
this Section 5 and the defective nomination shall be disregarded.
(d) Notwithstanding the foregoing provisions of this Section 5, a
stockholder shall also 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 herein and notice of a nomination shall be
deemed timely if received by the Company in time to be considered for inclusion
in the Company's proxy material relating to the meeting in accordance with the
applicable proxy rules of the Securities and Exchange Commission.
ARTICLE IV
MEETINGS OF THE BOARD
Section 1. Meetings. The Directors of the Company, and any committee
designated by the Board of Directors, may hold their meetings, both regular and
special, at such times and places as are fixed from time to time by resolution
of the Board of Directors or such committee. Any Director or committee member
may participate in a meeting via a conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
one another and participation in this manner shall constitute presence in person
at the meeting.
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Section 2. Annual Meeting. The first regular meeting of each newly elected
Board of Directors shall be held without further notice immediately following
the annual meeting of stockholders and at the same place, unless by unanimous
consent of the Directors then elected and serving such time or place shall be
changed.
Section 3. Regular Meetings. Other regular meetings of the Board of
Directors may be held without further notice at such time and place as shall
from time to time be determined by resolution of the Board of Directors.
Section 4. Special Meetings. Special meetings of the Board of Directors may
be called by the Chairman of the Board or by the President on notice to each
Director, given orally, in writing or by means of electronic communication;
special meetings shall be called by the Chairman of the Board or by the
President or Secretary in like manner and on like notice on the written request
of two Directors. The purpose of any special meeting shall be specified in the
notice or any waiver of such notice.
Section 5. Quorum. At all meetings of the Board of Directors the presence
of a majority of the members of the Board of Directors shall constitute a quorum
for the transaction of business, provided that in no case shall a quorum consist
of less than 1/3 of the total number of Directors. The affirmative vote of at
least a majority of the Directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors, unless a different vote is
required by the DGCL, the Certificate of Incorporation or these Bylaws. If a
quorum shall not be present at any meeting of Directors, the Directors present
thereat may adjourn the meeting from time to time without notice other than
announcement at the meeting, until a quorum shall be present.
Section 6. Committees. The Board of Directors may, by resolution passed by
a majority of the total number of Directors, designate one or more committees,
each committee to consist of two or more Directors of the Company, one of whom
shall be designated as chairman, who shall preside at all meetings of such
committee. To the extent provided in the resolution of the Board of Directors,
each such committee shall have and may exercise all of the authority of the
Board of Directors in the management of the business and affairs of the Company
and may authorize the seal of the Company to be affixed to all papers which may
require it; provided, however, that no such committee shall have any such power
or authority in reference to (a) approving or adopting, or recommending to the
stockholders, any action or matter expressly required by the DGCL to be
submitted to the stockholders for approval, or (b) adopting, amending or
repealing any Bylaw of the Company. Each committee shall keep regular minutes of
its proceedings and report the same to the Board of Directors when required. Any
member of any committee may be removed, with or without cause, by the
affirmative vote of a majority of the total number of Directors. If any vacancy
occurs in a committee, such vacancy may only be filled by the affirmative vote
of a majority of the total number of Directors.
Section 7. Action by Consent. Any action required or permitted to be taken
at any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or such committee
consent thereto in writing or by electronic
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transmission, and the writing or writings, or electronic transmission or
transmissions, are filed with the minutes of the proceedings of the Board or
such committee. Such filing shall be in paper form if the minutes are maintained
in paper form and in electronic form if the minutes are maintained in electronic
form.
Section 8. Compensation of Directors. Directors shall receive such
compensation for their services and reimbursement for their expenses as the
Board of Directors, by resolution, shall establish; provided that nothing herein
contained shall be construed to preclude any Director from serving the Company
in any other capacity and receiving compensation therefor.
ARTICLE V
NOTICE OF MEETINGS
Section 1. Form of Notice. Whenever under the provisions of the DGCL, the
Certificate of Incorporation or these Bylaws written notice is required or
permitted to be given to any Director or stockholder, and no provision is made
as to how such written notice shall be given, such notice shall be given by
mail, postage prepaid, addressed to such Director or stockholder at such address
as appears on the books of the Company; provided, however, that upon the consent
of any such Director or stockholder, the Company may instead notify such
Director or stockholder through means of an electronic transmission, as defined
in and in accordance with the provisions of the DGCL. Any notice required or
permitted to be given by mail shall be deemed to be given at the time when the
same is deposited in the United States mails as aforesaid.
Section 2. Waiver. Whenever any notice is required to be given to any
Director or stockholder of the Company under the provisions of the DGCL, the
Certificate of Incorporation or these Bylaws, a waiver thereof in writing signed
by the person or persons entitled to such notice, or a waiver given via
electronic transmission by the person or persons entitled to such notice,
whether before or after the time stated in such notice, shall be deemed
equivalent to the giving of such notice.
ARTICLE VI
OFFICERS
Section 1. General. The principal officers of the Company shall include any
one or more of a Chairman of the Board, a Chief Executive Officer, a President,
one or more Vice Presidents (the number and designations to be determined by the
Board of Directors), a Secretary and a Treasurer. The Board of Directors may
also elect such other officers, if any, as may be deemed necessary by the Board
of Directors, including without limitation a Chief Financial Officer, a
Controller and one or more Assistant Secretaries and Assistant Treasurers. Such
other officers shall exercise such powers and perform such duties as are set
forth in these Bylaws and as shall be determined from time to time by the Board.
Any two or more offices may be held by the same person.
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Section 2. Election. All officers of the Company shall be elected by the
Board of Directors.
Section 3. Salaries. The salaries of the principal officers of the Company
shall be fixed from time to time by the Board of Directors or by a duly
authorized committee thereof, and no officer shall be prevented from receiving
such salary by reason of the fact that such officer is also a Director of the
Company.
Section 4. Term of Office, Resignation and Removal. Each officer of the
Company shall hold office until his or her successor is elected and qualified or
until such officer's earlier death, resignation or removal. Any officer may
resign at any time upon written notice to the Board of Directors. Any officer
may be removed at any time, with or without cause, by the affirmative vote of a
majority of the total number of Directors, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. A vacancy
occurring in any office of the Company may be filled by the Board of Directors.
Section 5. Chairman of the Board. The Chairman of the Board, if any, shall
preside at all meetings of the stockholders and of the Board of Directors and
shall carry out such other duties as may be directed by the Board of Directors.
Section 6. Chief Executive Officer. The Chief Executive Officer shall have,
subject only to the Board of Directors and any executive committee constituted
by the Board, overall responsibility for managing and supervising the business
and affairs of the Company and shall see that all orders and resolutions of the
Board of Directors and any such executive committee are carried into effect. The
Chief Executive Officer shall have all powers and duties of supervision and
management usually vested in the general manager of a corporation, including the
supervision and direction of all other officers of the Company and the power to
appoint and discharge agents and employees. The Chief Executive Officer shall,
if the Chairman of the Board is either unable or unwilling to do so, preside at
meetings of the stockholders and of the Board of Directors.
Section 7. President. The President shall be the chief operating officer of
the Company and, subject to the control of the Board of Directors and the Chief
Executive Officer, shall in general supervise and control all of the business
and affairs of the Company. The President shall, if the Chairman of the Board
and the Chief Executive Officer are each either unable or unwilling to do so,
preside at meetings of the stockholders and of the Board of Directors. The
President shall have authority, subject to such rules as may be prescribed by
the Board of Directors and the Chief Executive Officer, to appoint such agents
and employees of the Company as he or she shall deem necessary, to prescribe
their powers, duties and compensation, and to delegate authority to them. Such
agents and employees shall hold office at the discretion of the President. The
President shall have authority to sign, execute and acknowledge, on behalf of
the Company, all documents and instruments necessary or proper to be executed in
the course of the Company's regular business or which shall be authorized by the
Board of Directors; and, except as otherwise provided by law or directed by the
Board of Directors or the Chief Executive Officer, the President may authorize
any other officer or agent of the Company to sign, execute
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and acknowledge such documents or instruments in his or her stead. The execution
by such other officer or agent of any such document or instrument shall be
conclusive evidence, as to third parties, of such officer's or agent's authority
to act in the stead of the President. The President shall perform all duties
incident to the office of President and shall have and may exercise such other
powers as are from time to time assigned to him or her by the Board of Directors
or the Chief Executive Officer.
Section 8. Vice Presidents. In the absence of the President, or in the
event of the President's death, inability or refusal to act, or in the event for
any reason it shall be impracticable for the President to act personally, the
Vice President (or in the event there be more than one Vice President, the Vice
Presidents in the order designated by the Board of Directors or, in the absence
of any designation, then in the order of their election) shall perform the
duties of the President and, when so acting, shall have all of the powers of and
shall be subject to all of the restrictions upon the President. Each Vice
President shall have such other powers and perform such other duties as may be
delegated or assigned to him or her from time to time by the Board of Directors,
the Chief Executive Officer or the President.
Section 9. Secretary. The Secretary shall: (a) keep (or cause to be kept)
regular minutes of all meetings of the stockholders, the Board of Directors and
any committees of the Board of Directors, in paper or electronic form; (b) see
that all notices to be given by the Company or the Board of Directors are duly
given in accordance with the provisions of these Bylaws or as required by law;
(c) be custodian of the corporate records of the Company (whether kept in paper
or electronic form) and of the seal of the Company, if any; (d) see that the
seal of the Company, if there is one, is affixed to all documents which are
authorized to be executed on behalf of the Company under its seal; (e) keep or
arrange for the keeping of a list of the Company's stockholders; (f) have
general charge of the stock transfer records of the Company; and (g) in general,
perform all duties incident to the office of Secretary and have such other
duties and exercise such authority as from time to time may be delegated or
assigned to him or her by the Board of Directors, the Chief Executive Officer or
the President.
Section 10. Treasurer. The Treasurer shall: (a) have charge and custody of
and be responsible for all funds and securities of the Company; (b) receive and
give receipts for moneys due and payable to the Company and deposit all such
moneys and other valuable effects in the name and to the credit of the Company
in such depositories as may be designated by the Company; and (c) in general,
perform all of the duties incident to the office of Treasurer and have such
other duties and exercise such authority as may from time to time be delegated
or assigned to him or her by the Board of Directors, the Chief Executive Officer
or the President.
Section 11. Assistant and Acting Officers and Agents. The Board of
Directors, Chief Executive Officer and President shall each have the power to
appoint any person to act as an assistant to any officer, or as agent for the
Company in an officer's stead, or to perform the duties of an officer whenever
it is impracticable for such officer to act personally, and such assistant or
acting officer, or agent, so appointed shall have the power to perform all
duties of the office to which such person is appointed to be assistant, or as to
which he or she is appointed to act,
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except as such power may be otherwise defined or restricted by the Board of
Directors, the Chief Executive Officer or the President.
Section 12. Bonding. If required by the Board of Directors, all or certain
of the officers shall give the Company a bond, in such form, in such sum, and
with such surety or sureties as shall be satisfactory to the Board, for the
faithful performance of the duties of their office and for the restoration to
the Company, in case of their death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in their possession or under their control belonging to the Company.
ARTICLE VII
CERTIFICATES OF SHARES
Section 1. Form of Certificates. All shares of the Company shall be
represented by certificates unless otherwise determined by the Board of
Directors in accordance with the provisions of the DGCL. Certificates
representing shares of the Company shall be in such form, consistent with law,
as shall be determined by the Board of Directors. At a minimum, such
certificates shall be consecutively numbered and shall state on the face thereof
the Company's name, that the Company is organized under the laws of the State of
Delaware, the name of the person to whom such certificate is issued, and the
number and class of shares and the designation of the series, if any, that the
certificate represents. If the Company is authorized to issue more than one
class of stock, or more than one series of any class, either: (a) the powers,
designations, preferences and relative, participating, optional, or other
special rights of each class of stock or series thereof and the qualifications
or restrictions of such preferences and/or rights (collectively, the
"Designations") shall be set forth in full or summarized on the face or back of
the certificate issued to represent such class or series of stock; or (b) a
statement that the Company will furnish the Designations without charge to each
stockholder who so requests shall be set forth on the face or back of the
certificate issued to represent such class or series of stock.
Section 2. Signatures on Certificates. Certificates representing shares of
the Company shall be signed by the Chairman of the Board, the President or a
Vice President and by the Secretary, an Assistant Secretary, the Treasurer or an
Assistant Treasurer. Any or all of the signatures on the certificate may be a
facsimile. In case any officer who has signed, or whose facsimile signature has
been used on, a certificate shall cease to be such officer of the Company before
such certificate has been delivered by the Company or its agents, such
certificate may nevertheless be issued and delivered as though the person who
signed such certificate or whose facsimile signature has been used thereon has
not ceased to be such officer of the Company.
Section 3. Lost Certificates. The Board of Directors may direct that a new
certificate or uncertificated shares be issued in place of any certificate
theretofore issued by the Company 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. In so doing, the Board of
Directors, in its discretion and as a condition precedent to the issuance
thereof, may require the owner of such lost, stolen or destroyed certificate, or
his or her legal representative, to give the
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Company a bond, in such form, in such sum, and with such surety or sureties as
it may direct, as indemnity against any claim that may be made against the
Company with respect to the certificate alleged to have been lost, stolen or
destroyed or the issuance of such new certificate or uncertified shares.
Section 4. Transfer of Shares. Upon surrender to the Company or a transfer
agent of the Company of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, or upon
surrender of such evidence with respect to uncertificated shares, the Company
shall issue a new certificate or uncertificated shares to the person entitled
thereto, cancel the old certificate and reflect the transaction in its stock
records.
Section 5. Registered Stockholders. The Company shall be entitled to treat
the holder of record of any share or shares of stock as the holder in fact
thereof and, accordingly, 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 law.
ARTICLE VIII
INDEMNITY
Section 1. Indemnification in Actions, Suits and Proceedings Other Than
Those By or in the Right of the Company. Upon written request to the Company
therefor, the Company 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 Company) by reason of the fact
that such person is or was a Director or officer of the Company, or is or was
serving at the request of the Company as a director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic corporation, partnership, joint venture, sole proprietorship, trust
or other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement 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 Company, and, with respect to any criminal
action or proceeding, such person had no reasonable cause to believe his or her
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 such person did
not act in good faith and in a manner which such person reasonably believed to
be in or not opposed to the best interests of the Company, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits and Proceedings By or in
the Right of the Company. Upon written request to the Company therefor, the
Company 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 Company to procure a judgment in its favor
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by reason of the fact that such person is or was a Director or officer of the
Company, or is or was serving at the request of the Company as a director,
officer, partner, venturer, proprietor, trustee, employee, agent or similar
functionary of another foreign or domestic corporation, partnership, joint
venture, sole proprietorship, trust or other enterprise, against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the Company; 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 Company unless and only to the
extent that the 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 of the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 3. Authorization and Payment of Indemnification.
(a) Any indemnification under Sections 1 and 2 of this Article VIII
(unless ordered by a court) shall be made by the Company only as authorized in
the specific case upon a determination that indemnification of the present or
former Director or officer is proper in the circumstances because the person has
met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII. If the person seeking indemnification is at the time of such
determination a Director or officer of the Company, such determination shall be
made: (i) by a majority vote of the Directors who are not parties to such
action, suit or proceeding, even though less than a quorum, or (ii) by a
committee of such Directors designated by a majority vote of such Directors,
even though less than a quorum, or (iii) if there are no such Directors, of if
such Directors so direct, by independent legal counsel in a written opinion, or
(iv) by the stockholders. The burden of proof with respect to the determination
of whether indemnification is required by Section 1 or Section 2 of this Article
VIII is on the Company to prove by clear and convincing evidence that
indemnification is not required.
(b) A written determination as to whether a present or former Director
or officer is entitled to indemnification shall be submitted to both the Company
and the Director or officer within fifty days after such person's written
request for indemnification.
(c) The Company shall pay all amounts required to be indemnified
pursuant to either Section 1 or Section 2 of this Article VIII within ten days
after receipt of the written determination under subsection (b) of this Section
3. The Company shall also pay all expenses incurred by the Director or officer
in the determination process under subsection (a) of this Section 3.
Section 4. Expenses Payable in Advance. Within ten days after receipt of a
written request therefor, the Company shall pay or reimburse any person who is
currently a Director or officer of the Company, and may pay or reimburse any
person who is a former Director or officer of the Company, such person's
expenses (including attorneys' fees) incurred in defending any civil, criminal,
administrative or investigative action, suit or proceeding, provided the request
for
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payment or reimbursement is accompanied by an undertaking by or on behalf of
such Director or officer to repay the amount paid by the Company if ultimately
it shall be determined that such person is not entitled to be indemnified by the
Company pursuant to this Article VIII. The undertaking required by this Section
4 shall be an unlimited general obligation of the person giving the undertaking
and may be accepted without reference to such person's ability to repay the
advance. Such undertaking need not be secured.
Section 5. Nonduplication. Notwithstanding the requirements of Sections 1
and 2 of this Article VIII, the Company shall not indemnify a Director or
officer under such Sections if the Director or officer has previously received
indemnification or an advance of expenses from any person, including the
Company, in connection with the same proceeding. However, the Director or
officer has no duty to look to any other person for indemnification.
Section 6. Indemnification of Employees and Agents. The Company shall
indemnify an employee of the Company who is not a Director or officer of the
Company, to the extent that he or she has been successful on the merits or
otherwise in defense of a proceeding, for all reasonable expenses incurred in
the proceeding if the employee was a party because he or she was an employee of
the Company. In addition, the Company may indemnify and allow reasonable
expenses of an employee or agent who is not a Director or officer of the Company
to the extent provided by a general or specific action of the Board of Directors
or by contract.
Section 7. Nonexclusivity. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article VIII shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, 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, it being the policy of the Company that indemnification of the
persons specified in Sections 1 and 2 of this Article VIII shall be made to the
fullest extent permitted by law. The provisions of this Article VIII shall not
be construed to preclude the indemnification of any person who is not specified
in Section 1 or Section 2 of this Article VIII but whom the Company has the
power or obligation to indemnify under the provisions of the DGCL or otherwise.
The indemnification and advancement of expenses provided by, or granted pursuant
to, this Article VIII shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a Director, officer,
employee or agent of the Company. In the event of the death of any person having
a right of indemnification under this Article VIII, such right shall inure to
the benefit of such person's heirs, executors, administrators and personal
representatives.
Section 8. Insurance. The Company may purchase and maintain insurance on
behalf of any person who is or was a Director, officer, employee or agent of the
Company, or is or was serving at the request of the Company 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 Company is required or permitted to
indemnify such person against such liability under this Article VIII.
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Section 9. Court-Ordered Indemnification. If a claim for indemnification or
the advancement of expenses is not timely paid by the Company or is denied to
any officer or Director seeking the same, such officer or Director may bring
suit against the Company to recover the amount due or to establish the Company's
liability therefor. Any such suit must be brought before the Court of Chancery
of the State of Delaware, which court shall have exclusive jurisdiction to hear
and determine such claims. It shall be a defense to any such action that such
indemnification or advancement of expenses is not permitted under the DGCL, but
the burden of proving such defense shall be on the Company. Neither a contrary
determination under Section 3 of this Article VIII nor the absence of any
determination thereunder shall be a defense to any such claim or create a
presumption that indemnification or the advancement of expenses is not
permissible. Notice of any claim for indemnification pursuant to this Section 9
shall be given to the Company promptly following the filing of such action. If
successful, in whole or in part, the person seeking indemnification shall also
be entitled to be paid his or her expenses in prosecuting such action.
Section 10. Liberal Construction. In order for the Company to obtain and
retain qualified Directors, officers and employees, the foregoing provisions
shall be liberally administered to afford maximum indemnification of Directors,
officers and, where Section 6 of this Article VIII applies, employees. Such
indemnification shall be granted in all applicable cases unless to do so would
clearly contravene law, controlling precedent or public policy.
Section 11. Certain Definitions Applicable to this Article. For purposes of
this Article VIII:
(a) References to "the Company" shall without limitation 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 the 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
this Article VIII 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.
(b) References to an "other enterprise" shall include, without
limitation, an employee benefit plan.
(c) References to "fines" shall include, without limitation, any
excise taxes assessed on a person with respect to any employee benefit plan.
(d) References to "serving at the request of the Company" shall
include, without limitation, any service as a Director, officer, employee or
agent of the Company which imposes duties on, or involves services by, such
Director, officer, employee, or agent with respect to an employee benefit plan,
its participants or beneficiaries.
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(e) 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 Company."
(f) References to an "action," "suit" or "proceeding" shall include,
without limitation, any appeal therefrom or inquiry or investigation that could
lead thereto.
Section 12. Amendments. Any amendment, modification or repeal of this
Article VIII, in whole or in part, shall not adversely affect any rights to
indemnification and to the advancement of expenses of a Director, officer,
employee or agent existing at the time of such amendment, modification or repeal
with respect to any acts or omissions occurring prior to the time of such
amendment, modification or repeal.
ARTICLE IX
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the outstanding shares of the Company,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting. Dividends
may be declared and paid in cash, in property, or in shares of the Company,
subject to the provisions of the DGCL and the Certificate of Incorporation. The
Board of Directors may fix in advance a record date for the purpose of
determining stockholders entitled to receive payment of any dividend, such
record date to be not more than sixty days prior to the payment date of such
dividend, or the Board of Directors may close the stock transfer books for such
purpose for a period of not more than sixty days prior to the payment date of
such dividend. In the absence of any action by the Board of Directors, the date
upon which the Board of Directors adopts the resolution declaring such dividend
shall be the record date.
Section 2. Fiscal Year. The fiscal year of the Company shall be fixed by
resolution of the Board of Directors.
Section 3. Seal. The Company may have a seal, and said seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced
or otherwise. Any officer of the Company shall have authority to affix the seal
to any document requiring it.
Section 4. Corporate Records. Any records maintained by the Company in the
regular course of its business, including its stock ledger, books of account,
and minute books, may be kept on, or by means of, any information storage device
or method, provided that the records so kept can be converted into clearly
legible paper form within a reasonable time. Such records may be kept, subject
to the provisions of the DGCL, within or without the State of Delaware at such
place or places as may be designated from time to time by the Board of Directors
or as is otherwise provided in these Bylaws.
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Section 5. Amendments.
(a) The Board of Directors is expressly authorized to make, adopt,
alter, amend and repeal from time to time these Bylaws, subject to the right of
the stockholders to adopt, alter, amend and repeal Bylaws made by the Board of
Directors, or to make new Bylaws; provided, however, that Bylaws shall not be
adopted, altered, amended or repealed, or new Bylaws made, by the stockholders
of the Company except by the affirmative vote of the holders of at least
two-thirds (66 2/3%) of the votes entitled to be cast by the outstanding shares
entitled to vote thereon.
(b) Any action taken or authorized by the stockholders or by the Board
of Directors which would be inconsistent with the Bylaws then effect but is
taken or authorized by a vote that would be sufficient to amend the Bylaws so
that the Bylaws would be consistent with such action shall be given the same
effect as though the Bylaws had been temporarily amended or suspended so far,
but only so far, as is necessary to permit the specific action so taken or
authorized.
Section 6. Description of Board. As used in these Bylaws, the phrase
"members of the Board of Directors" shall mean the Directors then serving as
such and the phrase "total number of Directors" shall mean the number of
Directors then constituting the Board of Directors, including any such
directorships that may be vacant.
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