9/22/00
Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
NATIONAL SEMICONDUCTOR CORPORATION
ARTICLE I.
OFFICES
Section 1. Registered Office.
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The registered office shall be in the City of Wilmington, County of New
Castle, State of Delaware.
Section 2. Other Offices.
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The corporation 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 corporation may require.
ARTICLE II.
STOCKHOLDERS
Section 1. Place of Meetings.
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Meetings of stockholders shall be held at such place either within or
without the State of Delaware as may be designated by the board of directors.
Section 2. Annual Meeting.
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An annual meeting of stockholders shall be held on the fourth Friday in
September of each year, at 10:30 A.M., or at such other date and time as shall
be designated by the board of directors. At the annual meeting the stockholders
shall elect a board of directors and transact such other business as may be
properly brought before the meeting.
Section 3. Special Meetings.
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Subject to the rights of the holders of any series of stock having a
preference over the Common Stock of the corporation as to dividends or upon
liquidation ("Preferred Stock") with respect to such series of Preferred Stock,
special meetings of the stockholders may be called only by the chairman of the
board or by the board of directors pursuant to a resolution adopted by a
majority of the total number of directors which the corporation would have if
there were no vacancies (the "Whole Board").
Section 4. Notice of Meetings.
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The secretary or such other officer of the corporation as is designated by
the board of directors shall serve personally or send through the mails or by
telegraph a written notice of annual or special meetings of stockholders,
addressed to each stockholder of record entitled to vote at his address as it
appears on the stock transfer books of the corporation, stating the time and
place of the meeting and the purpose or purposes for which the meeting is
called, not less than ten nor more than sixty days before the date of the
meeting. If mailed, notice shall be deemed to have been given when deposited in
the United States mail, postage prepaid, directed to the stockholder at his
address as it appears on the records of the corporation. Notice given by
telegraph shall be deemed to have been given upon delivery of the message to the
telegraph company. 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. Any previously scheduled meeting of the
stockholders may be postponed, and (unless the Certificate of Incorporation
otherwise provides) any special meeting of the stockholders may be cancelled, by
resolution of the board of directors upon public notice given prior to the date
previously scheduled for such meeting of stockholders.
Section 5. Waiver of Notice.
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Notice of a meeting need not be given to any stockholder who signs a waiver
of notice, in person or by proxy, whether before or after a meeting. The
attendance of any stockholder at a meeting, in person or by proxy, without
protesting either prior thereto or at its commencement the lack of notice of
such meeting, shall constitute a waiver of notice by him. Neither the business
to be transacted at, nor the purpose of, any regular or special meeting of the
stockholders need be specified in any written waiver of notice.
Section 6. Stockholder's List.
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The officer who has charge of the stock transfer book of the corporation
shall prepare and make, at least ten days before every meeting of the
stockholders at which directors are to be elected, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to examination by any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 7. Quorum and Adjournment.
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Except as otherwise provided by law or by the Certificate of Incorporation,
the holders of a majority of the outstanding shares of the corporation entitled
to vote generally in the election of directors (the "Voting Stock"), present in
person or represented by proxy, shall constitute a quorum at all meetings of
stockholders for the transaction of business, except that when specified
business is to be voted on by a class or series of stock voting as a class, the
holders of a majority of the shares of such class or series shall constitute a
quorum of such class or series for the transaction of such business. The
chairman of the meeting or a majority of the shares so represented may adjourn
the meeting from time to time, whether or not there is such a quorum. The
stockholders present at a duly called meeting at which a quorum is present may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum. At such adjourned meeting at
which a quorum shall be present or represented any business may be transacted
which might have been transacted at the meeting as originally notified. If the
adjournment is for more than thirty days, or after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each stockholder of record entitled to vote.
Section 8. Proxies.
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At all meetings of stockholders, each stockholder entitled to vote shall
have one vote, to be exercised in person or by proxy, for each share of capital
stock having voting power, held by such stockholder. All proxies shall be in
writing, shall relate only to a specific meeting (including continuations and
adjournments of the same), and shall be filed with the secretary at or before
the time of the meeting. Each proxy must be signed by the shareholder or his
attorney-in-fact. The person or persons named in a proxy for a specific meeting
may vote at any adjournment of the meeting for which the proxy was given. If
more than one person is named as proxy, a majority of such persons so named
present at the meeting, or if only one shall be present, then that one, shall
have and exercise all the powers conferred upon all of the persons unless the
proxy shall provide otherwise. A proxy purporting to be executed by or on behalf
of a stockholder shall be deemed valid unless challenged prior to or at its
exercise and the burden of proving invalidity shall rest on the challenger.
Section 9. Notice of Stockholder Business and Nominations.
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a. Annual Meetings of Stockholders.
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(1) Nominations of persons for election to the board of directors of the
corporation and the proposal of business to be considered by the stockholders
may be made at an annual meeting of stockholders (a) pursuant to the
corporation's notice of meeting, (b) by or at the direction of the board of
directors or (c) by any stockholder of the corporation who was a stockholder of
record at the time of giving of notice provided for in this By-Law, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this By-Law.
(2) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (c) of paragraph (a)(1) of
this By-Law, the stockholder must have given timely notice thereof in writing to
the secretary of the corporation and such other business must otherwise be a
proper matter for stockholder action. To be timely, a stockholder's notice shall
be delivered to the secretary at the principal executive offices of the
corporation not later than the close of business on the 120th day nor earlier
than the close of business on the 150th day 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 30 days before or more than 120 days
after such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the 150th day prior to such
annual meeting and not later than the close of business on the later of the
120th day prior to such annual meeting or the 10th day following the day on
which public announcement of the date of such meeting is first made by the
corporation. In no event shall the public announcement of an adjournment of an
annual meeting commence a new time period for the giving of a stockholder's
notice as described above. 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 that is required to be
disclosed in solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and Rule
14a-11 thereunder (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected); (b) as to
any other business that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, 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; and (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 and (ii) the class and number
of shares of the corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (a)(2) of
this By-Law to the contrary, in the event that the number of directors to be
elected to the board of directors of the corporation is increased and there is
no public announcement by the corporation naming all of the nominees for
director or specifying the size of the increased board of directors at least 130
days prior to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this By-Law 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.
b. Special Meetings of Stockholders.
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Only such business shall be conducted at a special meeting of stockholders
as shall have been brought before the meeting pursuant to the corporation's
notice of meeting. Nominations of persons for election to the board of directors
may be made at a special meeting of stockholders at which directors are to be
elected pursuant to the corporation's notice of meeting (a) by or at the
direction of the board of directors or (b) provided that the board of directors
has determined that directors shall be elected at such meeting, by any
stockholder of the corporation who is a stockholder of record at the time of
giving of notice provided for in this By-Law, who shall be entitled to vote at
the meeting and who complies with the notice procedures set forth in this
By-Law. In the event the corporation calls a special meeting of stockholders for
the purpose of electing one or more directors to the board of directors, any
such stockholder may nominate a person or persons (as the case may be), for
election to such position(s) as specified in the corporation's notice of
meeting, if the stockholder's notice required by paragraph (a)(2) of this By-Law
shall be delivered to the secretary at the principal executive offices of the
corporation not earlier than the close of business on the 90th day prior to such
special meeting and not later than the close of business on the later of the
60th day prior to such special meeting or the 10th day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees proposed by the board of directors to be elected at such
meeting. In no event shall the public announcement of an adjournment of a
special meeting commence a new time period for the giving of a stockholder's
notice as described above.
c. General.
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(1) Only such persons who are nominated in accordance with the procedures
set forth in this By-Law shall be eligible to serve as directors and only such
business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
By-Law. Except as otherwise provided by law, the Certificate of Incorporation or
these By-Laws, the chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in this By-Law and, if any proposed nomination or business
is not in compliance with this By-Law, to declare that such defective proposal
or nomination shall be disregarded.
(2) For purposes of this By-Law, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-Law, a stockholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this
By-Law. Nothing in this By-Law shall be deemed to affect any rights (i) of
stockholders to request inclusion of proposals in the corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders
of any series of Preferred Stock to elect directors under specified
circumstances.
Section 10. Voting.
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When a quorum is present at any meeting, the affirmative vote of the
holders of a majority of the capital stock having voting power present in person
or represented by proxy and entitled to vote on the matter shall decide any
question brought before such meeting, except (i) in respect of elections of
directors which shall be decided, subject to the rights of the holders of any
series of Preferred Stock, by a plurality of the votes cast, and (ii) when the
question is one which by express provision of statute or Certificate of
Incorporation a different vote is required, in which case such express provision
shall govern and control the decision of such question. No vote need be taken by
ballot unless required by statute.
Section 11. Inspectors of Elections; Opening and Closing the Polls.
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The board of directors by resolution shall appoint one or more inspectors,
which inspector or inspectors may include individuals who serve the corporation
in other capacities, including, without limitation, as officers, employees,
agents or representatives, to act at the meetings of stockholders and make a
written report thereof. One or more persons may be designated as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate has been appointed to act or is able to act at a meeting of
stockholders, the chairman of the meeting shall appoint one or more inspectors
to act at the meeting. Each inspector, before discharging his or her duties,
shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her ability. The
inspectors shall have the duties prescribed by law.
The chairman of the meeting shall fix and announce at the
meeting the date and time of the opening and the closing of the polls for each
matter upon which the stockholders will vote at a meeting.
Section 12. Record Date for Action by Written Consent.
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In order that the corporation may determine the stockholders entitled to
consent to corporate action in writing without a meeting, the board of directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the board of directors, and
which date shall not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the board of directors. 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 ten (10) days after the date on which
such a request is received, adopt a resolution fixing the record date (unless a
record date has previously been fixed by the board of directors pursuant to the
first sentence of this Section). If no record date has been fixed by the board
of directors pursuant to the first sentence of this Section or otherwise within
ten (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 first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation by delivery to its registered office in Delaware, its principal
place of business, or to any officer or agent of the corporation having custody
of the book in which proceedings of meetings of stockholders are recorded.
Delivery shall be by hand or by certified or registered mail, return receipt
requested. 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.
Section 13. Inspectors of Written Consent.
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In the event of the delivery, in the manner provided by Section 12 of this
Article to the corporation of the requisite written consent or consents to take
corporate action and/or any related revocation or revocations, the corporation
shall engage independent inspectors of elections for the purpose of promptly
performing a ministerial review of the validity of the consents and revocations.
For the purpose of permitting the inspectors to perform such review, no action
by written consent without a meeting shall be effective until such date as the
independent inspectors certify to the corporation that the consents delivered to
the corporation in accordance with Section 12 of this Article represent at least
the minimum number of votes that would be necessary to take the corporate
action. Nothing contained in this Section shall in any way be construed to
suggest or imply that the board of directors or any stockholder shall not be
entitled to contest the validity of any consent or revocation thereof, whether
before or after such certification by the independent inspectors, or to take any
other action (including, without limitation, the commencement, prosecution, or
defense of any litigation with respect thereto, and the seeking of injunctive
relief in such litigation).
Section 14. Effectiveness of Written Consent.
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Every written consent shall bear the date of signature of each stockholder
who signs the consent and no written consent shall be effective to take the
corporate action referred to therein unless, within sixty (60) days of the
earliest dated written consent received in accordance with Section 12 of this
Article, a written consent or consents signed by a sufficient number of holders
to take such action are delivered to the corporation in the manner prescribed in
Section 12 of this Article.
ARTICLE III.
THE BOARD OF DIRECTORS
Section 1. Composition.
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The board of directors shall consist of six directors subject to such
automatic increase as may be required by the corporation's Restated Articles of
Incorporation. The board may enlarge or reduce the size of the board in a vote
of the majority of the directors in office. No director need be a stockholder.
Section 2. Election and Term.
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Except as provided in Section 3 of this Article, the directors shall be
elected by a plurality vote at the annual meeting of the stockholders. Each
director shall hold office until his successor is elected and qualified or until
his earlier resignation or removal.
Section 3. Vacancies and Newly Created Directorships.
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Any vacancy on the board of directors, or any newly created directorships,
however occurring, may be filled by a majority of the directors then in office,
though less than a quorum or by a sole remaining director. Any vacancy in the
board of directors may also be filled by a plurality vote of the stockholders
unless such vacancy shall have been previously filled by the board of directors.
Section 4. Powers.
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The business of the corporation shall be managed by its board of directors
which shall have and may exercise all such powers of the corporation, including
the power to make, alter or repeal the bylaws of the corporation, and do all
such lawful acts and things as are not by statute directed or required to be
exercised or done by the stockholders.
Section 5. Place of Meetings.
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The board of directors of the corporation may hold meetings both regular
and special, either within or without the State of Delaware. Members of the
board of directors or any committee designated by the board, may participate in
a meeting of such board or committee by means of a conference telephone by means
of which all persons participating in the meeting can hear each other, and
participation shall constitute presence in person at such meeting.
Section 6. Regular Meetings.
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Regular meetings of the board of directors may be held without call or
notice immediately following the annual meeting of the stockholders and at such
time and at such place as shall from time to time be selected by the board of
directors, provided that in respect of any director who is absent when such
selection is made, the notice, waiver and attendance provisions of Section 7 of
this Article shall apply to such regular meetings.
Section 7. Special Meetings and Notice.
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Special meetings of the board of directors may be called by the chairman of
the board of directors, a majority of the directors or the president on notice
given to each director, either personally (including by telephone) or by hand
delivery, first-class mail, overnight mail, courier service, telegram or
facsimile transmission sent to his business or home address, stating the place,
date and hour of the meeting. If mailed by first-class mail, such notice shall
be deemed to have been adequately given when deposited in the United States
mail, postage prepaid, directed to the director at his business or home address,
at least five (5) days before such meeting. Notice given by telegraph, overnight
mail or courier service shall be deemed adequately given upon delivery of the
message to the telegraph company or to the overnight mail or courier service
company at least two days before such meeting. Notice given by facsimile
transmission shall be deemed adequately given upon transmission of the message
at least twelve (12) hours before such meeting. Notice given by hand delivery or
personally shall be deemed adequately given when delivered at least twelve (12)
hours before such meeting. Notice of a meeting need not be given to any director
who signs a waiver of notice, whether before or after the meeting. The
attendance of any director at a meeting, without protesting either prior thereto
or at its commencement the lack of notice of such meeting, shall constitute a
waiver of notice by him. Any notice or waiver of notice of a meeting of the
board of directors need not specify the purposes of the meeting.
Section 8. Quorum and Voting.
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At all meetings of the board of directors a majority less one of the total
number of directors then in office shall constitute a quorum for the transaction
of business, except that in no case shall less than two director be deemed to
constitute a quorum, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the board of directors.
If a quorum shall not be present at any meeting of the board of directors, a
majority of less than a quorum may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present.
Section 9. Action by Consent.
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Any action required or permitted to be taken at any meeting of the board of
directors may be taken without a meeting,if all members of the board of
directors, then in office, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the board of directors.
Section 10. Resignation.
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Any director may resign at any time upon written notice delivered to the
corporation at its principal office. The resignation shall take effect at the
time specified therein, and if no time be specified, at the time of its dispatch
to the corporation.
Section 11. Removal.
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A director may be removed for cause by the vote of a majority of the
stockholders at a special or annual meeting after the director has been given
reasonable notice and opportunity to be heard before the stockholders.
Section 12. Committees.
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The board of directors may, by 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,which committee, to the
extent provided in the resolution, shall have and may exercise the powers 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. 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. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
ARTICLE IV.
OFFICERS
Section 1. Designation.
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The officers of the corporation shall consist of a president, treasurer, a
secretary, and such other officers including a chairman of the board of
directors, one or more group presidents, vice presidents (including group
executive vice presidents, corporate vice presidents and senior vice
presidents), assistant treasurers and assistant secretaries, as the board of
directors or the stockholders may deem warranted. With the exception of the
chairman of the board of directors who must be a director, no officer need be a
director or a stockholder. Any number of offices may be held by the same person.
Section 2. Election and Term.
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Except for officers to fill vacancies and newly created offices provided
for in Section 6 of this Article, the officers shall be elected by the board of
directors at the first meeting of the board of directors after the annual
meeting of the stockholders. All officers shall hold office at the pleasure of
the board of directors.
Section 3. Duties of Officers.
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In addition to those duties that may from time to time be delegated to them
by the board of directors, the officers of the corporation shall have the
following duties:
(a) Chairman of the Board.
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The chairman of the board shall preside at all meetings of
the stockholders and of the board of directors at which he is
present, shall be ex-officio a member of all committees formed by
the board of directors and shall have such other duties and
powers as the board of directors may prescribe.
(b) President.
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The president shall be the chief executive officer of the
corporation, shall have general and active management of the
business of the corporation, shall see that all orders and
resolutions of the board of directors are carried into effect,
and, in the absence or nonelection of the chairman of the board
of directors, shall preside at all meetings of the stockholders
and the board of directors at which he is present if he is also a
director. The president also shall execute bonds, mortgages, and
other contracts requiring a seal under the seal of the
corporation, except where required or permitted by law to be
otherwise signed and executed and except where the signing and
execution thereof shall be delegated expressly by the board of
directors to some other officer or agent of the corporation and
shall have such other powers and duties as the board of directors
may prescribe.
(c) Group President.
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The group president or group presidents, if any, shall have
general and active management of the group for which they are
designated as president by the board of directors and shall have
such other duties and powers a vice-presidents or as the board of
directors or the president may prescribe.
(d) Vice-President.
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The vice-president or vice-presidents, if any, shall have
such duties and powers as the board of directors or th president
may prescribe. In the absence of the president or in the event of
his inability or refusal to act, the group president or vice
president, if any, or if there be more than one, the group
presidents or vice-presidents, in the order designated by the
board of directors, or, in the absence of such designation, then
in the order of their election, shal perform the duties and
exercise the powers of the president.
(e) Secretaries and Assistant Secretaries.
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The secretary shall record the proceedings of all meetings
of the stockholders and all meetings of the board of directors in
books to be kept for that purpose, shall perform like duties for
the standing committees when required, and shall give, or cause
to be given, call and/or notices of all meetings of the
stockholders and meetings of the board of directors in accordance
with these by-laws. The secretary also shall have custody of the
corporate seal of the corporation, affix the seal to any
instrument requiring it and attest thereto when authorized by the
board of directors or the president, and shall have such other
duties and powers as the board of directors may prescribe.
The assistant secretary, if any, or if there be more than
one, the assistant secretaries, in the order designated by the
board of directors, or, if there be no such designation, then in
order of their election, shall, in the absence of the secretary
or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the secretary and shall have
such other duties and powers as the board of directors may
prescribe.
In the absence of the secretary or an assistant secretary at
a meeting of the stockholders or the board of directors, an
acting secretary shall be chosen by the stockholders or
directors, as the case may be, to exercise the duties of the
secretary at such meeting.
In the absence of the secretary or an assistant secretary or
in the event of the inability or refusal of the secretary or an
assistant secretary to give, or cause to be given, any call
and/or notice required by law or these by-laws, any such call
and/or notice may be given by any person so directed by the board
of directors, the president or stockholders, upon whose
requisition the meeting is called in accordance with these
by-laws.
(f) Treasurer and Assistant Treasurer.
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The treasurer shall have the custody of the corporate funds
and securities, shall keep full and accurate accounts of receipts
and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to
the credit of the corporation in such depositories as may be
designated by the board of directors. The treasurer shall also
disburse the funds of the corporation as may be ordered by the
board of directors, taking proper vouchers for such
disbursements, shall render to the board of directors, when the
board of directors so requires, an account of all his
transactions as treasurer and of the financial condition of the
corporation, and shall have such other duties and powers as the
board of directors may prescribe. If required by the board of
directors, the treasurer shall give the corporation a bond, which
shall be renewed every six years, in such sum and with such
surety or sureties as shall be satisfactory to the board of
directors for the faithful performance of the duties of his
office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the
corporation.
The assistant treasurer, if any, or if there be more than
one, the assistant treasurers in the order designated by the
board of directors, or, in the absence of such designation, then
in the order of their election, shall, in the absence of the
treasurer or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the treasurer and
shall have such other duties and powers as the board of directors
may prescribe.
(g) Other Officers.
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Any other officer shall have such powers and duties as the
board of directors may prescribe.
Section 4. Resignation.
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Any officer may resign at any time upon written notice delivered to the
corporation at its principal office. The resignation shall take effect at the
time specified therein, and if no time be specified, at the time of its dispatch
to the corporation.
Section 5. Removal.
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Any officer elected or appointed by the board of directors may be removed
at any time by the affirmative vote of a majority of the board of directors.
Section 6. Vacancies and Newly Created Offices.
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A vacancy in office, however occurring, and newly created offices, shall be
filled by the board of directors.
ARTICLE V.
CAPITAL STOCK
Section 1. Stock Certificates.
------------------------------
Each holder of stock in the corporation shall be entitled to have a
certificate signed in an officer's official capacity or in the name of the
corporation by the chairman of the board of directors, or the president or a
vice-president and the treasurer or an assistant treasurer, or the secretary or
an assistant secretary of the corporation, certifying the number of shares owned
by him in the corporation. Where a certificate is countersigned (a) by a
transfer agent other than the corporation or its employee, or, (b) by a
registrar other than the corporation or its employee, any other signature on the
certificate may be facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if he were such officer, transfer agent, or registrar at the date of issue.
Section 2. Lost, Stolen or Destroyed Certificates.
--------------------------------------------------------
The board of directors, or at their direction any officer of the company,
may direct a new certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate or
certificates, the board of directors, or at their direction any officer of the
company, may, in its (his) discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
Section 3. Transfer.
---------------------
Upon surrender to the secretary or the transfer agent of the corporation of
a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, and upon compliance with any
provisions respecting restrictions on transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
Section 4. Issue of Stock.
--------------------------
From time to time, the board of directors may, by vote of a majority of the
directors, issue any of the authorized capital stock of the corporation for
cash, property, services rendered or expenses, or as a stock dividend and on any
terms permitted by law.
Section 5. Fixing Record Date.
----------------------------------
In order that the corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or 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 sixty nor less than ten days before the date of such meeting, nor more
than sixty days prior to any other action. 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. Registered Stockholders.
------------------------------------
The corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends, and
to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VI.
GENERAL PROVISIONS
Section 1. Dividends.
-----------------------
Dividends upon the capital stock of the corporation may be declared by the
board of directors in any regular or special meeting, pursuant to law. Dividends
may be paid in cash, in property, or in shares of capital stock. Before payment
of any dividend, there may be set aside out of any funds of the corporation
available for dividends such sum or sums as the directors from time to time, in
their absolute discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the corporation, or for such other purpose as the directors shall
think conducive to the interest of the corporation, and the directors may modify
or abolish any such reserve in the manner in which it was created.
Section 2. Checks.
-------------------
All checks or demands for money and notes of the corporation shall be
signed by such officer or officers or such other person or persons as the board
of directors may from time to time designate.
Section 3. Fiscal Year.
------------------------
The fiscal year of the corporation shall be fixed by a resolution of the
board of directors.
Section 4. Seal.
----------------
The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VII.
AMENDMENTS
Section 1. Amendments.
-----------------------
These by-laws may be amended at any proper meeting of the stockholders or
of the board of directors.
ARTICLE VIII.
INDEMNIFICATION
Section 1. Non-Derivative Proceedings.
--------------------------------------
The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contenders or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceedings, had reasonable cause to believe that his conduct was unlawful.
Section 2. Derivative Proceedings.
----------------------------------
The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 3. Amount of Indemnification.
---------------------------------------
To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 1 or 2, or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
Section 4. Determination to Indemnify.
------------------------------------------
Any indemnification under Sections 1 or 2 (unless ordered by a court) shall
be made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth in Sections 1 and 2. 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 written opinion, or (3) by the
stockholders.
Section 5. Advance Payment.
---------------------------
Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of a director, officer, employee or agent to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
corporation as authorized in this section or otherwise pursuant to the law of
Delaware.
Section 6. Non-Exclusiveness of By-Law.
--------------------------------------------
The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of 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 statute, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office.
Section 7. Continuation of Indemnification.
--------------------------------------------
The indemnification and advancement of expenses provided by, or granted
pursuant to this Article VIII, or permitted by statute or otherwise, shall,
unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
Section 8. Indemnification Insurance.
--------------------------------------
The corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this section.
