[DESCRIPTION] Exhibit 3(II)
AMENDED AND RESTATED BYLAWS
OF
DATRON SYSTEMS INCORPORATED
(As of August 29, 2000)
REGISTERED OFFICE AND REGISTERED AGENT
1. Registered Office. The corporation shall have and
maintain in the State of Delaware a registered office which
may, but need not be, the same as its place of business. The
corporation by resolution of its Board of Directors or the
corporation's registered agent may change the location of
the corporation's registered office to any other place in
Delaware. A certificate certifying the change shall be filed
with the Secretary of State and a certified copy of the
filed certificate shall be recorded in the office of the
Recorder for the county in which the new office is located;
and, if such new office is located in a county other than
that in which the former office was located, a certified
copy of such filed certificate shall also be recorded in the
office of the Recorder for the county in which such former
office was located.
2. Registered Agent. The corporation shall have
and maintain in the State of Delaware a registered agent,
which agent may be either (1) an individual resident in the
State of Delaware whose business office is identical with
the corporation's registered office or (2) a domestic
corporation, which may be itself, or a foreign corporation,
authorized to transact business in the State of Delaware,
having a business office identical with the corporation's
registered office. The corporation by resolution of its
Board of Directors may change the registered agent of the
corporation. A certificate certifying the change shall be
filed with the Secretary of State and a certified copy of
the filed certificate shall be recorded in the office of the
Recorder for the county in which the registered agent is
located.
STOCKHOLDERS
3. Time and Place of Meetings. All meetings of the
stockholders shall be held at such time and place, either
within or without the State of Delaware, as shall be fixed
by the Board of Directors and stated in the notice or waiver
of notice of the meeting.
4. Annual Meeting. An annual meeting of the
stockholders for the election of directors and for the
transaction of other proper business as may come before the
meeting shall be held at 11:00 A.M. on the first Tuesday of
the fifth calendar month following the end of the
corporation's fiscal year, or at such other time and place
as the Board of Directors shall designate; provided that the
Board of Directors shall hold an annual meeting within
thirteen months after the organization of the corporation or
its last annual meeting.
5. Special Meetings. Special meetings of the
stockholders, other than those required by statute, may be
called at any time by the Board of Directors pursuant to a
resolution approved by a majority of the whole Board of
Directors. The Board of Directors may postpone or
reschedule any previously scheduled special meeting.
6. Notice.
a) Annual and Special Meetings. A written notice
of the annual meeting or of a special meeting shall be given
which shall state the place, date and time of the meeting,
and in the case of a special meeting, the purpose or
purposes for which the meeting is called. Unless otherwise
provided by statute, such written notice of any meeting
shall be given not less than 10 nor more than 60 days before
the date of the meeting to each stock-holder entitled to
vote at such meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid,
directed to the stockholder at the stockholder's address as
it appears on the records of the corporation.
(b) Adjourned Meeting. Notice of an adjourned
meeting need not be given if the place, date and time of the
adjourned meeting are announced at the meeting at which the
adjournment is taken and the adjournment is not for more
than 30 days. At the adjourned meeting the corporation may
transact any business which might have been transacted at
the original meeting. If the adjournment is for more than 30
days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting
shall be given as in the case of an annual or special
meeting.
7. Quorum and Required Vote. Except as otherwise
provided by statute, the Delaware General Corporation Law,
the Certificate of Incorporation or these Bylaws, (1) a
majority of the shares entitle d to vote, present in person
or represented by a proxy, shall constitute a quorum at the
meeting of stockholders, (2) the affirmative vote of the
majority of shares present in person or represented by proxy
at the meeting and entitled to vote on the subject matter
shall be the act of the stockholders, and (3) when a
separate vote by class is required, the affirmative vote of
the majority of shares of such class present in person or
represented by proxy at the meeting shall be the act of the
class.
8. Voting. Except as otherwise provided by the
Delaware General Corporation Law or the Certificate of
Incorporation, each holder of voting stock on the record
date fixed pursuant to these Bylaws and registered in the
holder's name on the books of the corporation for the
determination of stockholders who shall be entitled to vote
at such meetings shall, at each meeting of the stockholders,
be entitled to one vote for each share of stock held. Each
stockholder entitled to vote at a meeting of stockholders or
to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to
act for such stockholder by proxy, but no such proxy shall
be voted or acted upon after 3 years from its date, unless
the proxy provides for a longer period. A duly executed
proxy shall be irrevocable if it states that it is
irrevocable and if, and only as long as, it is coupled with
an interest sufficient in law to support an irrevocable
power. A proxy may be made irrevocable regardless of whether
the interest with which it is coupled is an interest in the
stock itself or an interest in the corporation generally.
9. List of Stockholders and Stock Ledger. The officer
who has charge of the stock ledger of the corporation shall
prepare and make, at least 10 days before every meeting of
stockholders, a complete list of 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 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. The stock
ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list
of stockholders required by this paragraph or the books of
the corporation or to vote in person or by proxy at any
meeting of stockholders.
10. Consent of Stockholders in Lieu of Meeting.
Unless otherwise provided in the Certificate of
Incorporation, any action required to be taken, or any
action which may be taken, at an annual or special meeting
of the stockholders of the corporation, 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
less 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
voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented
in writing.
10A. Advance Notice of Stockholder Nominations
and Proposals.
Nominations of persons for election to the Board
and the proposal of business to be transacted by the
stockholders may be made at an annual meeting of
stockholders (a) pursuant to the corporation's notice with
respect to such meeting, (b) by or at the direction of the
Board or (c) by any stockholder of record of the corporation
who was a stockholder of record at the time of the giving of
the notice provided for in the following paragraph, who is
entitled to vote at the meeting and who has complied with
the notice procedures set forth in this section.
For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant
to clause (c) of the foregoing paragraph, (1) the
stockholder must have given timely notice thereof in writing
to the Secretary of the corporation, (2) such business must
be a proper matter for stockholder action under the Delaware
General Corporation Law, (3) if the stockholder, or the
beneficial owner on whose behalf any such proposal or
nomination is made, has provided the corporation with a
Solicitation Notice, as that term is defined in subclause
(c)(iii) of this paragraph, such stockholder or beneficial
owner must, in the case of a proposal, have delivered a
proxy statement and form of proxy to holders of at least the
percentage of the corporation's voting shares required under
applicable law to carry any such proposal, or, in the case
of a nomination or nominations, have delivered a proxy
statement and form of proxy to holders of a percentage of
the corporation's voting shares reasonably believed by such
stockholder or beneficial holder to be sufficient to elect
the nominee or nominees proposed to be nominated by such
stockholder, and must, in either case, have included in such
materials the Solicitation Notice, and (4) if no
Solicitation Notice relating thereto has been timely
provided pursuant to this section, the stockholder or
beneficial owner proposing such business or nomination must
not have solicited a number of proxies sufficient to have
required the delivery of such a Solicitation Notice under
this section. To be timely, a stockholder's notice shall be
delivered to the Secretary at the principal executive
offices of the corporation not less than 45 or more than 75
days prior to the first anniversary (the "Anniversary") of
the date on which the corporation first mailed its proxy
materials for the preceding year's annual meeting of
stockholders; provided, however, that if the date of the
annual meeting is advanced more than 30 days prior to or
delayed by more than 30 days after the anniversary of the
preceding year's annual meeting, notice by the stockholder
to be timely must be so delivered not later than the close
of business on the later of (i) the 90th day prior to such
annual meeting or (ii) the 10th day following the day on
which public announcement of the date of such meeting is
first made. Such stockholder's notice shall set forth (a)
as to each person whom the stockholder proposes to nominate
for election or reelection as a director all information
relating to such person as would be required to be disclosed
in solicitations of proxies for the election of such
nominees as directors pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and such person's written consent to serve as a
director if elected; (b) as to any other business that the
stockholder proposes to bring before the meeting, a brief
description of such business, the reasons for conducting
such business at the meeting, and any material interest in
such business of such stockholder and the beneficial owner,
if any, on whose behalf the proposal is made; (c) as to the
stockholder giving the notice and the beneficial owner, if
any, on whose behalf the nomination or proposal is made (i)
the name and address of such stockholder, as they appear on
the corporation's books, and of such beneficial owner, (ii)
the class and number of shares of the corporation that are
owned beneficially and of record by such stockholder and
such beneficial owner, and (iii) whether either such
stockholder or beneficial owner intends to deliver a proxy
statement and form of proxy to holders of, in the case of a
proposal, at least the percentage of the corporation's
voting shares required under applicable law to carry the
proposal or, in the case of a nomination or nominations, a
sufficient number of holders of the corporation's voting
shares to elect such nominee or nominees (an affirmative
statement of such intent, a "Solicitation Notice").
Notwithstanding anything in the second sentence of the
second paragraph of this Section 10A to the contrary, in the
event that the number of directors to be elected to the
Board is increased and there is no public announcement
naming all of the nominees for director or specifying the
size of the increased Board made by the corporation at least
55 days prior to the Anniversary, a stockholder's notice
required by this Bylaw shall also be considered timely, but
only with respect to nominees for any new positions created
by such increase, if it shall be delivered to the Secretary
at the principal executive offices of the corporation not
later than the close of business on the 10th day following
the day on which such public announcement is first made by
the corporation.
Only persons nominated in accordance with the
procedures set forth in this Section 10A shall be eligible
to serve as directors and only such business shall be
conducted at an annual meeting of stockholders as shall have
been brought before the meeting in accordance with the
procedures set forth in this section. The chair of the
meeting shall determine whether a nomination or any business
proposed to be brought before the meeting has been made in
accordance with the procedures set forth in these Bylaws
and, if any proposed nomination or business is not in
compliance with these Bylaws, to declare that such defective
proposed business or nomination shall not be presented for
stockholder action at the meeting and shall be disregarded.
Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before
the meeting pursuant to the corporation's notice of meeting.
Nominations of persons for election to the Board may be made
at a special meeting of stockholders at which directors are
to be elected pursuant to the corporation's notice of
meeting (a) by or at the direction of the Board or (b) by
any stockholder of record of the corporation who is a
stockholder of record at the time of giving of notice
provided for in this paragraph, who shall be entitled to
vote at the meeting and who complies with the notice
procedures set forth in this Section 10A. Nominations by
stockholders of persons for election to the Board may be
made at such a special meeting of stockholders if the
stockholders' notice required by the second paragraph of
this Section 10A is delivered to the Secretary at the
principal executive offices of the corporation not later
than the close of business on the later of the 90th day
prior to such special meeting or the 10th day following the
day on which public announcement is first made of the date
of the special meeting and of the nominees proposed by the
Board to be elected at such meeting.
For purposes of this section, "public announcement"
shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or a comparable
national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this
Section 10A, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to matters set forth
in this Section 10A. Nothing in this Section 10A shall
affect any rights of stockholders to request inclusion of
proposals in the corporation's proxy statement pursuant to
Rule 14a-8 under the Exchange Act.
BOARD OF DIRECTORS
11. Powers. The business and affairs of the
corporation shall be managed by or under the direction of
its Board of Directors.
12. Number, Classification and Term of Office. The
number of directors of the corporation shall be six. The
number of directors of the corporation may be changed from
time to time by resolution adopted by a majority of the
total authorized number of directors, but in no event shall
the number of directors be less than one or more than nine.
No decrease in the number of directors shall have the effect
of shortening the term of office of any incumbent director.
Election of the directors shall take place at the annual
meeting of the stockholders. Each director elected shall
hold office until the director's successor is elected and
qualified or until the director's death, resignation or
removal.
13. Resignations. A director may resign at any time
by giving written notice to the corporation and such
resignation shall be effective when given unless the
director specifies a later time. The resignation shall be
effective regardless of whether it is accepted by the
corporation.
14. Removal of Directors. A director may be removed
with or without cause by the holders of a majority of the
shares then entitled to vote at an election of directors.
15. Vacancies and Newly Created Directorships. Unless
otherwise provided in the Certificate of Incorporation or
these Bylaws, (1) vacancies and newly created directorships
resulting from any increase in the authorized number of
directors elected by all of the stockholders having the
right to vote as a single class may be filled by a majority
of the directors then in office, although less than a
quorum, or by a sole remaining director, (2) any directors
so chosen shall hold office until the next annual meeting,
and until their successors shall be elected and qualified
and (3) when one or more directors shall resign from the
Board of Directors, effective at a future date, a majority
of the directors then in office, including those who have so
resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective. If at
the time of filling any vacancy or newly created
directorship, the directors then in office shall constitute
less than a majority of the whole Board of Directors (as
constituted immediately prior to any such increase), any
stockholder or stockholders holding at least 10 percent of
the total number of shares at the time outstanding having
the right to vote for such directors, may apply to the
Delaware Court of Chancery for a summary order that an
election be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the
directors then in office.
16. Time and Place of Meeting. All meetings of the
Board of Directors shall be held at such time and place,
either within or without the State of Delaware, as shall be
fixed by the Board of Directors or stated in the notice or
waiver of notice of the meeting.
17. Regular Meetings. Unless the Board of
Directors determines otherwise, the Board of Directors shall
hold a regular meeting during each quarter of the
corporation's fiscal year. Unless fixed by the Board of
Directors, these meetings shall be called by the Chairman of
the Board, the President or any director. One such meeting
shall take place immediately after the annual meeting of
stockholders.
18. Special Meetings. Special meetings of the Board
of Directors may be called by the Chairman of the Board, the
President or any director.
19. Notice of Meetings.
(a) Regular and Special Meetings. Regular meetings
of the Board of Directors may be held without notice if the
time and place of the meetings has been fixed by the Board
of Directors. Special meetings and regular meetings not
fixed by the Board of Directors shall be held upon 4 days
notice by mail or 48 hours notice delivered personally or by
telephone or telegraph which shall state the place, date and
time of the meeting. Notice need not specify the purpose of
any regular or special meeting.
(b) Adjourned Meetings. Notice of an adjourned meeting
need not be given if the place, date and time of the
adjourned meeting are announced at the meeting at which the
adjournment is taken and the adjournment is not for more
than 48hours. If a meeting is adjourned for more than 48
hours, notice of the adjourned meeting shall be given prior
to the time of that meeting to the directors who were not
present at the time of the adjournment.
20. Action Without Meeting. Unless otherwise
restricted by the Certificate of Incorporation or these
Bylaws, 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 committee thereof, as the case may be,
consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board of
Directors or committee thereof.
21. Meeting by Telephone. Unless otherwise restricted
by the Certificate of Incorporation or these Bylaws, members
of the Board of Directors or any committee thereof may
participate in the meeting of the Board of Directors or
committee thereof by means of conference telephone or
similar communications equipment if all persons who
participate in the meeting can hear each other and such
participation in a meeting shall constitute presence in
person at such meeting.
22. Quorum and Manner of Acting. Except as otherwise
provided by the Delaware General Corporation Law, the
Certificate of Incorporation or these Bylaws, the majority
of the total number of directors shall be required to
constitute a quorum for the transaction of business at any
meeting of the Board of Directors or any committee thereof,
and the act of the majority of the directors present at any
meeting at which a quorum is present shall be the act of the
Board of Directors.
23. Committees. The Board of Directors may, by a
resolution passed by a majority of the whole Board of
Directors, designate one or more committees, each committee
to consist of one or more of the directors of the
corporation. The Board of
Directors may designate one or more directors as alternate
members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the
member or members present at any meeting and not
disqualified from voting, whether or not the member or
members constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in
the place of any such absent or disqualified member. Any
such committee, to the extent permitted by law and to the
extent provided in the resolution of the Board of Directors
or in the Bylaws of the corporation, shall have and may
exercise all the powers and authority of the Board of
Directors in the management of
the business and affairs of the corporation, and may
authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall
have the power or authority to (1) amend the Certificate of
Incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing the
issuance of shares of stock adopted by the Board of
Directors as provided in Section 151(a) of the
Delaware General Corporation Law, fix the designations and
any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the
exchange of such shares for, shares of any other class or
classes or any other series of the same or any other class
or classes of stock of the corporation), (2) adopt an
agreement of merger or consolidation under Section 251 or
Section 252 of the Delaware General Corporation Law, (3)
recommend to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and
assets, (4) recommend to the stockholders dissolution of the
corporation or a revocation of a dissolution or (5) amend
these Bylaws and, unless the resolution, Certificate of
Incorporation or these Bylaws expressly provide, no such
committee shall have the power or authority to declare a
dividend, to authorize the issuance of stock or to adopt a
certificate of ownership in a merger pursuant to Section 253
of the Delaware General Corporation Law. Such committee or
committees shall have such name or names as may be
determined from time to time by resolution adopted by the
Board of Directors. The Board of Directors shall have the
power, at any time for any reason, to change the members of,
to fill vacancies on, and to discontinue any such committee.
Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors when the Board
of Directors requires.
24. Compensation of Directors. Unless otherwise
restricted by the Certificate of Incorporation or these
Bylaws, the Board of Directors shall have the authority to
fix the compensation of directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the
Board of Directors or a committee thereof, may be paid a
fixed sum for attendance at each meeting of the Board of
Directors or a committee thereof and may be paid a stated
salary as director. No such payment shall preclude any
director from serving the corporation in any other capacity
and receiving compensation therefor.
OFFICERS
25. Titles. The officers of the corporation shall be
chosen by the Board of Directors and shall include a
President, a Secretary and a Treasurer. The Board of
Directors may also appoint a Chairman of the Board, selected
from the directors on the Board of Directors, one or more
Vice-Presidents, Assistant Vice-Presidents, Assistant
Secretaries, Assistant Treasurers and such other officers
and agents with such powers and duties as it shall deem
necessary. Any number of offices may be held by the same
person unless otherwise provided by the Certificate of
Incorporation or these Bylaws.
26. Election, Term of Office and Vacancies. The
officers shall be elected annually by the Board of Directors
at its regular meeting following the annual meeting of the
stockholders, and each officer shall hold office until the
next annual election of officers and until the officer's
successor is elected and qualified, or until the officer's
death, designation or removal. Any officer may be removed at
any time, with or without cause, by the Board of Directors.
Any vacancy occurring in any office may be filled by the
Board of Directors.
27. Resignation. Any officer may resign at any time
upon notice to the corporation and such resignation shall be
effective when given unless the officer specifies a later
time. The resignation shall be effective regardless of
whether it is accepted by the corporation.
28. Chairman of the Board. If the Board of Directors
elects a Chairman of the Board, the Chairman of the Board
shall preside over all meetings of the Board of Directors
and stockholders. The Chairman of the Board shall be an ex-
officio member of all committees of the Board of Directors.
29. President. The President, subject to the general
control of the Board of Directors, shall be the chief
executive officer of the corporation, and, as such, shall be
responsible for the management and direction of the affairs
of the corporation, its officers, employees and agents. If
the Board of Directors does not elect a Chairman of the
Board, the President shall preside over all meetings of the
Board of Directors and stockholders. The President shall
exercise such other powers and duties as may be assigned by
these Bylaws or by the Board of Directors and shall see that
all orders and resolutions of the Board of Directors are
carried into effect. The President shall be an ex-officio
member of all committees of the Board of Directors.
30. Secretary and Assistant Secretaries. The
Secretary shall attend meetings of the shareholders and the
Board of Directors and committees thereof and shall (1)
record all votes and the minutes of such meetings in a book
to be kept at the registered office of the corporation, its
principal place of business or at such other place as the
Board of Directors may determine, (2) see that all notices
are duly given in accordance with the provisions of these
Bylaws as required by law, (3) give or cause to be given,
notice of all meetings of the stockholders and the Board of
Directors and committees thereof, (4) be custodian of all
corporate records (other than financial) and of the seal of
the corporation,(5) have authority to affix the seal to all
documents requiring it and attest to the same, (6) perform
all duties incident to the office of Secretary and (7) have
such other duties and powers as may, from time to time, be
assigned by the Board of Directors or President. Unless a
transfer agent is appointed by the Board of Directors to
keep a share register, the Secretary shall keep a share
register at the registered office of the corporation, its
principal place of business or at such other place as the
Board of Directors may determine showing the names of the
shareholders and their addresses, the number and class of
shares held by each, the number and date of certificates
issued and the number and date of cancellation of each
certificate surrendered for cancellation. At the request of
the Secretary, or in the Secretary's absence or disability,
any Assistant Secretary shall perform any of the duties of
the Secretary and when so acting, shall have all the powers
of, and be subject to all the restrictions upon, the
Secretary.
31. Treasurer and Assistant Treasurers. The Treasurer
shall (1) have custody of all the corporate funds and
securities, (2) keep adequate and correct accounts of the
properties and business transactions, (3) disburse such
funds of the corporation as may be ordered by the Board of
Directors or the President, taking proper vouchers for such
disbursements, (4) render to the Board of Directors or the
President whenever they may require an account of all
transactions and the financial condition of the corporation,
(5) perform all other duties commonly incident to the office
of Treasurer and (6) have such other duties and powers as
may, from time to time, be assigned by the Board of
Directors or the President. At the request of the Treasurer
or in the Treasurer's absence or disability, any Assistant
Treasurer may perform any of the duties of the Treasurer and
when so acting shall have all the powers, of and be subject
to all the restrictions upon, the Treasurer.
32. Compensation. The compensation of all officers
and agents of the corporation shall be fixed by the Board of
Directors from time to time.
EXECUTION OF INSTRUMENTS
33. Authority. Unless otherwise provided by the
Board of Directors, deeds, notes, contracts and any other
corporate instrument or document may be executed on behalf
of the corporation by the signature of the Chairman of the
Board, the President or a Vice-President when attested by
the Secretary or an Assistant Secretary or by such officers
as may be duly authorized to exercise the duties,
respectively, ordinarily exercised by the President, Vice-
President, Secretary or Assistant Secretary of the
Corporation.
STOCK AND DIVIDENDS
34. Certificates for Shares. The shares of the
corporation shall be represented by certificates which shall
be numbered and entered in the books of the corporation as
they are issued. The certificates shall exhibit the holder's
name and number of shares and shall be signed by or in the
name of the corporation by the Chairman of the Board of
Directors, the President or a Vice-President and by the
Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary. Any or all of the signatures on the
certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose
facsimile signature has been placed upon such certificate
shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, such
certificate may nevertheless be issued by the corporation
with the same effect as if such officer, transfer agent or
registrar were such officer, transfer agent or registrar at
the date of issuance.
35. Issuance of Additional Stock. The Board of
Directors may, at any time and from time to time, if all of
the shares of capital stock which the corporation is
authorized by the Certificate of Incorporation to issue have
not been issued, subscribed for, or otherwise committed to
be issued, issue or take subscriptions for additional shares
of the corporation's capital stock up to the amount
authorized in the Certificate of Incorporation.
36. Transfer. Upon surrender to the corporation or
the transfer agent of the corporation of a certificate of
stock duly endorsed or accompanied by proper evidence of
succession, assignation, or authority to transfer the
corporation shall issue a new certificate to the person
entitled thereto, cancel the old certificate and record the
transaction upon its books.
37. Lost, Stolen or Destroyed Stock Certificates. The
corporation may issue a new certificate of stock in place of
any certificate 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. In authorizing
such issue of a new certificate the corporation may as a
condition precedent to such issue require the
owner of such lost, stolen or destroyed certificate to give
the corporation a bond sufficient to indemnify it against
any claim that may be made against it on account of the
alleged loss, theft or destruction of any such certificate.
38. Dividends. Subject to the Delaware General
Corporation Law, the Certificate of Incorporation and these
Bylaws, dividends upon the capital stock of the corporation
may be declared by the Board of Directors and such dividends
may be paid in cash, property or shares of the capital
stock.
RECORD DATE
39. 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 to express consent 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 60
nor less than 10 days before the date of such meeting, nor
more than 60 days prior to any other action. If no record
date is fixed, the record date (1) 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, (2) 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,
subject to the next paragraph, be the day on which the first
written consent is expressed, (3) 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 that the Board of Directors may fix a
new record date for the adjourned meeting.
Any stockholder of record seeking to have the
stockholders authorize or take corporate action by written
consent shall, by written notice to the Secretary, request
the Board of Directors to fix a record date. The Board of
Directors shall promptly, but in all events within 10 days
after the date on which such a request is received, adopt a
resolution fixing the record date. If no record date has
been fixed by the Board of Directors within 10 days of the
date on which such a request is received, the record date
for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior
action by the Board of Directors is required by applicable
law, shall be the day on which the first written consent is
expressed. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is
required by applicable law, the record date for determining
stockholders entitled to consent to corporate action in
writing without a meeting shall be at the close of business
on the date on which the Board of Directors adopts the
resolution taking such prior action.
CONFLICTS OF INTEREST
40. Loans and Guarantees. The corporation may lend
money to, or guarantee any obligation of, or otherwise
assist any officer or other employee of the corporation or
of its subsidiary, including any officer or employee who is
a director of the corporation or its subsidiary, whenever,
in the judgment of the Board of Directors, such loan,
guarantee or assistance may reasonably be expected to
benefit the corporation. The loan, guarantee or other
assistance may be with or without interest, and may be
unsecured, or secured in such manner as the Board of
Directors shall approve, including, without limitation, a
pledge of shares of stock of the corporation.
41. Interested Directors. No contract or transaction
between the corporation and one or more of its directors or
officers, or between a corporation and any other
corporation, partnership, association or other organization
in which one or more of its directors or officers are
directors or officers, or have a financial interest, shall
be void or voidable solely for this reason, or solely
because the director or officer is present at or
participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or
transaction, or solely because an interested director's
votes are counted for such purpose, if (1) the material
facts as to the interested director's relationship or
interest and as to the contract or transaction are disclosed
or are known to the Board of Directors or committee thereof,
and the Board of Directors or committee thereof in good
faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested
directors, even-though the disinterested directors be less
than a quorum, or (2) the material facts as to the
interested director's relationship or interest and as to the
contract or transaction are disclosed or are known to the
shareholders entitled to vote thereon and the contract or
transaction is specifically approved in good faith by the
vote of the shareholders or (3) the contract or transaction
is fair as to the corporation as of the time it is
authorized, approved or ratified by the Board of Directors,
a committee thereof or the shareholders. Common or
interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors
or a committee thereof which authorizes the contract or
transaction.
INDEMNIFICATION AND INSURANCE
42. Indemnification of Officers, Directors, Employees
and Agents.
(a) Right of Indemnity. 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, suitor proceeding whether civil, criminal,
administrative or investigative, whether or not the action
is by or in the right of the corporation, by reason of the
fact that the 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, judgments, fines
and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit
or proceeding to the maximum extent permitted by Section 145
of the Delaware General Corporation Law, as amended from
time to time. For purposes of these subparagraphs, "the
corporation," "other enterprises," "fines," and "serving at
the request of the corporation" shall have the meaning
specified in Section 145.
(b) Approval of Indemnity. Upon written request to the
Board of Directors by any person seeking indemnification
under Section 145(a) or (b), the Board of Directors shall
approve indemnification upon a determination that
indemnification of the person is proper in the circumstances
because the person has met the applicable standard of
conduct set forth in Section 145(a) or (b). Such
determination shall be made (1) by the Board of Directors by
a majority vote of a quorum consisting of directors who were
not parties to such action, suit or proceeding, or (2) if
such a 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) if there are no
disinterested directors, by the stockholders.
(c) Advancement of Expenses. Expenses incurred by any
person entitled to indemnification under this Bylaw in
defending a civil or criminal action, suit or proceeding
shall be paid by the corporation in advance of the final
disposition of such action, suit or proceeding, provided
that, if Section 145 so requires, the payment of such
expenses incurred by an officer or director in his or her
capacity as such (and not in any other capacity in which a
director or officer, including without limitation service
with respect to an employee benefit plan) in advance of an
action, suit or proceeding shall only be made upon receipt
of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be
determined that such director or officer is not entitled to
be indemnified by the corporation as authorized in Section
145.
(d) Non-exclusivity of Rights. The right to
indemnification and payment of expenses incurred in
defending a proceeding in advance of its final disposition
conferred in this Bylaw shall not be exclusive of any other
right which any person ma y have or hereafter acquire under
any statute, provision of the Certificate of Incorporation,
Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise. Such rights shall continue as to a
person who has ceased to be an officer, director, employee
or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(e) Contract Right. The right to indemnification
confirmed by this Bylaw shall be a contract right.
(f) Proceedinqs bv Indemnitee. A person otherwise
entitled to indemnification in connection with any action,
suit or proceeding (or part thereof) initiated by such
person shall only be indemnified for, or have his or her
expenses advanced in connection therewith, if such
proceedings (or part thereof) are authorized by the Board of
Directors.
43. Insurance. Upon resolution passed by the Board of
Directors, the corporation may purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as the 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 any such persons status as such, whether or not the
corporation would have the power to indemnify such person
against such liability under Section 145 of the Delaware
General Corporation Law.
WAIVER OF NOTICE
44. Waiver of Notice. Whenever notice is required to
be given under the Delaware General Corporation Law, the
Certificate of Incorporation or these Bylaws, a written
waiver of notice, signed by the person entitled to notice,
whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting,
except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to
the transaction of any business because the meeting is not
lawfully called or convened. Unless so required by the
Certificate of Incorporation or these Bylaws, neither the
business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors or
members of a committee of directors need be specified in any
written waiver of notice.
INSPECTION OF BOOKS AND RECORDS
45. Stockholders. Any stockholder, in person or by
an 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 there from. 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 shall be the person who seeks the right to inspection,
the demand under oath shall be accompanied by a power of
attorney or such other writing which authorizes the attorney
or other agent to so act on behalf of the stockholder. The
demand under oath shall be directed to the corporation at
its registered office in the State of Delaware or at its
principal place of business. The stock ledger shall be the
only evidence as to who are the stockholders entitled to
examine the stock ledger, the list of stockholders and the
other books and records of the corporation.
46. 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 such director's position as a
director.
47. Form of Records. Any records maintained by a
corporation in the regular course of its business, including
its stock ledger, books of account, and minute books, may be
kept on, or be in the form of, punch cards, magnetic tape,
photographs, micro photographs or any other information
storage device, provided that the record so kept can be
converted in clearly legible written form within a
reasonable time. The corporation shall so convert any record
so kept upon the request of any person entitled to inspect
the same.
AMENDMENTS
48. Amendments. These Bylaws may be amended or
repealed or new bylaws may be adopted, by the stockholders
or by the Board of Directors.
FISCAL YEAR
49. Fiscal Year. Unless otherwise fixed by resolution
by the Board of Directors, the fiscal year of the
corporation shall end March 31st.
