AMENDED AND RESTATED
BYLAWS
OF
INPRISE CORPORATION
ARTICLE I
CORPORATE OFFICES
1. Principal Office
The principal executive office of the corporation shall be located at
such place as the Board of Directors may from time to time authorize. If the
principal executive office is located outside the State of Delaware, and the
corporation has one or more business offices in the State of Delaware, the Board
of Directors shall fix and designate a principal business office in the State of
Delaware.
2. Other Offices
Additional offices of the corporation shall be located at such place or
places, within or outside the State of Delaware, as the Board of Directors may
from time to time authorize.
3. Registered Agent in State
The corporation shall have and maintain in the State of Delaware a
registered agent, which agent may be either an individual resident in the State
whose business office is identical with the corporation's registered office, or
a domestic corporation (which may be itself), or a foreign corporation
authorized to transact business in the State, having a business office identical
with such registered office.
ARTICLE II
MEETINGS OF STOCKHOLDERS
4. Place of Meetings
Meetings of stockholders shall be held at any place, within or outside
the State of Delaware, designated by the Board of Directors. In the absence of
any such
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designation, stockholders' meetings shall be held at the registered
office of the corporation.
5. Annual Meeting
The annual meeting of stockholders shall be held each year on a date
and at a time designated by the Board of Directors. At the meeting, directors
shall be elected and any other proper business may be transacted.
At any annual meeting of stockholders of the corporation, only such
business shall be conducted as shall have been properly brought before the
meeting (a) by or at the direction of the Board of Directors or (b) by any
stockholder of the corporation (i) who is a stockholder of record on the date of
the giving of the notice provided for in this Section 5 and on the record date
for the determination of stockholders entitled to vote at such annual meeting
and (ii) who complies with the notice procedures set forth in this Section 5.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the corporation.
To be timely, a stockholder's notice must be delivered to or mailed and
received by the Secretary at the principal executive offices of the corporation
not less than ninety (90) days nor more than one hundred-twenty (120) days prior
to the anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual meeting is
called for a date that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth (10th) day following
the day on which such notice of the date of the annual meeting was mailed or
such public disclosure of the date of the annual meeting was made, whichever
first occurs.
To be in proper written form, a stockholder's notice to the Secretary
shall set forth in writing as to each matter the stockholder proposes to bring
before the annual meeting (a) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (b) the name and record address, as they appear on the
corporation's books, of such stockholder, (c) the class and series and number of
shares of each class and series of capital stock of the corporation which are
owned beneficially or of record by the
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stockholder, (d) a description of all arrangements or understandings between
such stockholder and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder and any
material interest of such stockholder in such business and (e) a representation
that such stockholder is a holder of record of stock of the corporation entitled
to vote at such meeting and that such stockholder intends to appear in person or
by proxy at the annual meeting to bring such business before the meeting.
In addition, notwithstanding anything in this Section 5 to the
contrary, a stockholder intending to nominate one or more persons for election
as a director at an annual meeting must comply with Section 19.1 of these bylaws
for such nomination to be properly brought before such meeting.
No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 5; provided, however, that, once business
has been properly brought before the annual meeting in accordance with such
procedures, nothing in this Section 5 shall be deemed to preclude discussion by
any stockholder of any such business. If the chairman of an annual meeting
determines that business was not properly brought before the meeting in
accordance with the foregoing procedures, the chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
6. Quorum
The holders of a majority of the stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum is not present or represented at any
meeting of the stockholders, then the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum is present or represented. At such adjourned meeting at
which a quorum is present or represented, any business may be transacted that
might have been transacted at the meeting as originally noticed.
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. Where a separate vote by class is
required, the affirmative vote of
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the majority of shares of such class present in person or represented by proxy
at the meeting shall be the act of such class.
7. Special Meetings
Special meetings of the stockholders, for any purpose or purposes, may
be called by the Board of Directors, the Chairman of the Board or the President.
8. Notice of Meetings
Except as otherwise may be required by law, written notice of each
meeting of stockholders shall be given to each stockholder entitled to vote at
that meeting, by the Secretary, assistant secretary or other person charged with
that duty, not less than ten (10) nor more than sixty (60) days before such
meeting.
Notice of any meeting of stockholders shall state the date, place and
hour of the meeting; and
(a) in the case of a special meeting, the general nature of the
business to be transacted, and no other business may be
transacted at such meeting; and
(b) in the case of an annual meeting, the general nature of matters
which the Board of Directors, at the time of the mailing of the
notice, intends to present for action by the stockholders.
At a special meeting, notice of which has been given in accordance with
this Section 8, action may not be taken with respect to business, the general
nature of which has not been stated in such notice. At an annual meeting, action
may be taken with respect to business stated in the notice of such meeting,
given in accordance with this Section 8 and with respect to any other business
as may properly come before the meeting.
9. Manner of Giving Notice; Affidavit of Notice
Written notice of any meeting of stockholders, if mailed, is 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. An
affidavit of the Secretary or an assistant secretary or of the transfer agent of
the corporation that the
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notice has been given shall, in the absence of fraud, be prima facie evidence of
the facts stated therein.
10. Adjourned Meeting; Notice
When a meeting is adjourned to another time or place, unless these
bylaws otherwise require, notice need not be given of the adjourned meeting if
the time and place thereof are announced at the meeting at which the adjournment
is taken. At the adjourned meeting the corporation may transact any business
that might have been transacted at the original meeting. If the adjournment is
for more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
11. Voting
The stockholders entitled to vote at any meeting of stockholders shall
be determined in accordance with the provisions of Section 14 of these bylaws,
subject to the provisions of Sections 217 and 218 of the General Corporation Law
of Delaware (relating to voting rights of fiduciaries, pledgors and joint owners
of stock and to voting trusts and other voting agreements).
Except as otherwise provided in the certificate of incorporation, each
stockholder shall be entitled to one vote for each share of capital stock held
by such stockholder. All elections of directors shall be by written ballot,
unless otherwise provided in the certificate of incorporation.
12. Waiver of Notice
Whenever notice is required to be given under any provision of the
General Corporation Law of Delaware or of the certificate of incorporation or
these bylaws, a written waiver thereof, 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. 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 unless so
required by the certificate of incorporation or these bylaws.
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13. Stockholder Action
Any action required or permitted to be taken by the stockholders of the
corporation must be effected at a duly called annual or special meeting of such
holders and may not be effected by any consent in writing by such holders.
14. Record Date for Stockholder Notice; Voting; Giving Consents
In order that the corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action.
If the Board of Directors does not so fix a record date:
(i) The record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders shall be at the close
of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the
day next preceding the day on which the meeting is held.
(ii) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
15. Proxies
Each stockholder entitled to vote at a meeting of stockholders may
authorize another person or persons to act for him by a written proxy, signed by
the stock-
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holder and filed with the Secretary of the corporation, but no such proxy shall
be voted or acted upon after three (3) years from its date, unless the proxy
provides for a longer period. A proxy shall be deemed signed if the
stockholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission or otherwise) by the stockholder or the
stockholder's attorney-in-fact. The revocability of a proxy that states on its
face that it is irrevocable shall be governed by the provisions of Section
212(c) of the General Corporation Law of Delaware.
16. List of Stockholders Entitled to Vote
The officer who has charge of the stock ledger of the corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Nothing contained in this
Section 16 shall require the corporation to include electronic mail addresses or
other electronic contact information on such list. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting for a
period of at least 10 days prior to the meeting: (i) on a reasonably accessible
electronic network, provided that the information required to gain access to
such list is provided with the notice of the meeting, or (ii) during ordinary
business hours, at the principal place of business of the corporation. In the
event that the corporation determines to make the list available on an
electronic network, the corporation may take reasonable steps to ensure that
such information is available only to stockholders of the corporation. If the
meeting is to be held at a physical location, then the list shall be produced
and kept at the time and place of the meeting during the whole time thereof, and
may be inspected by any stockholder who is present. If the meeting is to be held
solely by means of remote communications, then the list shall be open to the
examination of any stockholder during the whole time of the meeting on a
reasonably accessible electronic network, and the information required to access
such list shall be provided with the notice of the meeting.
17. Inspectors of Election
Before any meeting of stockholders, the Board of Directors may appoint
any persons, other than nominees for office, to act as inspectors of election at
the meeting or its adjournment. If no inspectors of election are so appointed,
the chairman of the meeting may, and on the request of any stockholder or a
stockholder's proxy shall, appoint inspectors of election at the meeting. The
number of inspectors shall be
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either one (1) or three (3). If inspectors are appointed at a meeting on the
request of one or more stockholders or proxies, the majority of shares
represented in person or proxy shall determine whether one (1) or three (3)
inspectors are to be appointed. If any person appointed as inspector fails to
appear or fails or refuses to act, the chairman of the meeting may, and upon the
request of any stockholder or a stockholder's proxy shall, appoint a person to
fill that vacancy.
These inspectors shall:
(a) determine the number of shares outstanding and the voting power
of each, the shares represented at the meeting, the existence of
a quorum, and the authenticity, validity, and effect of proxies;
(b) receive votes or ballots;
(c) hear and determine all challenges and questions in any way
arising in connection with the right to vote;
(d) count and tabulate all votes;
(e) determine when the polls shall close;
(f) determine the result; and
(g) do any other acts that may be proper to conduct the election or
vote with fairness to all stockholders.
ARTICLE III
DIRECTORS
18. Powers
Subject to the provisions of the General Corporation Law of Delaware
and any limitations in the certificate of incorporation or these bylaws relating
to action required to be approved by the stockholders or by the outstanding
shares, the business and affairs of the corporation shall be managed and all
corporate powers shall be exercised by or under the direction of the Board of
Directors.
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19. Number of Directors
The authorized number of directors of the corporation shall be seven
(7), and shall be subject to change as set from time to time pursuant to a
resolution approved by a majority of the Board of Directors then in office.
No reduction of the authorized number of directors shall remove any
director prior to the expiration of such director's term of office.
19.1 Notification of Nominations
Subject to the rights of holders of any class or series of stock having
a preference over the Common Stock as to dividends or upon liquidation,
nominations for the election of directors may be made (a) by or at the direction
of the Board of Directors or a proxy committee appointed by the Board of
Directors or (b) by any stockholder of the corporation (i) who is a stockholder
of record on the date of the giving of the notice provided for in this Section
19.1 and on the record date for the determination of the stockholders entitled
to vote at such meeting and (ii) who complies with the notice procedures set
forth in this Section 19.1.
In addition to any other applicable requirements, for a nomination to
be made by a stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary of the corporation.
To be timely, a stockholder's notice must be delivered to or mailed and
received by the Secretary at the principal executive offices of the corporation
not less than ninety (90) days nor more than one hundred-twenty (120) days prior
to the anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual meeting is
called for a date that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth (10th) day following
the day on which such notice of the date of the annual meeting was mailed or
such public disclosure of the date of the annual meeting was made, whichever
first occurs.
To be in proper written form, a stockholder's notice to the Secretary
shall set forth in writing (a) as to each person whom the stockholder proposes
to nominate for election as a director (i) the name, age, business address and
residence address of the
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person, (ii) the principal occupation and employment of the person, (iii) the
class and series and number of shares of each class and series of capital stock
of the corporation which are owned beneficially or of record by the person and
(iv) any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (or in any law or statute replacing such section) and the rules and
regulations promulgated thereunder; and (b) as to the stockholder giving the
notice (i) the name and record address of such stockholder, (ii) the class and
series and number of shares of each class and series of capital stock of the
corporation which are owned beneficially or of record by such stockholder, (iii)
a description of all arrangements or understandings between such stockholder and
each proposed nominee and any other person or persons (including their names)
pursuant to which the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder is a holder of record of stock of the
corporation entitled to vote at such meeting and that such stockholder intends
to appear in person or by proxy at the meeting to nominate the person or persons
named in its notice and (v) any other information relating to such stockholder
that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act (or in any law or statute
replacing such section) and the rules and regulations promulgated thereunder.
Such notice must be accompanied by a written consent of each proposed nominee to
being named as a nominee and to serve as a director if elected.
No person shall be eligible for election as a director of the
corporation unless nominated in accordance with the procedures set forth in this
Section 19.1. If the chairman of the meeting determines that a nomination was
not made in accordance with the foregoing procedures, the chairman shall declare
to the meeting that the nomination was defective and such defective nomination
shall be disregarded.
20. Election of Directors; Term
The directors, other than those who may be elected by the holders of
any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, shall be divided into three classes, as nearly
equal in number as possible, with the term of office of the first class to
expire at the 1990 Annual Meeting of Stockholders, the term of office of the
second class to expire at the 1991 Annual Meeting of Stockholders and the term
of office of the third class to expire at
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the 1992 Annual Meeting of Stockholders. At each Annual Meeting of Stockholders
following such initial classification, directors elected to succeed those
directors whose terms expire shall be elected for a term of office to expire at
the third succeeding Annual Meeting of Stockholders after their election.
Directors need not be stockholders of the corporation.
21. Resignations
Any directors of the corporation may resign effective upon giving
written notice to the Chairman of the Board, the Chief Executive Officer, the
President, the Secretary or the Board of Directors of the corporation, unless
the notice specifies a later time for the effectiveness of such resignation. If
the resignation specifies effectiveness at a future time, a successor may be
elected pursuant to Section 23 of these bylaws to take office on the date that
the resignation becomes effective.
22. Removal
Subject to the rights of the holders of any series of preferred stock
then outstanding, any director, or the entire Board of Directors, may be removed
from office at any time, with or without cause by the affirmative vote of the
holders of at least a majority of the voting power of all of the shares of the
corporation entitled to vote generally in the election of directors, voting
together as a single class.
23. Vacancies
Subject to the rights of the holders of any series of preferred stock
then outstanding, newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause may be filled by a majority vote of the directors then in
office, although less than a quorum, or by a sole remaining director, or by the
shareholders to fill any vacancy not filled by directors, and directors so
chosen shall hold office for a term expiring at the Annual Meeting of
Stockholders at which the term of the class to which they have been elected
expires. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
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24. Annual Meeting
The Board of Directors shall meet for the purpose of organization, the
election of officers and the transaction of other business, as soon as
practicable after each Annual Meeting of Stockholders, on the same day and at
the same place where such annual meeting shall be held. Notice of such meeting
need not be given. In the event such annual meeting is not so held, the annual
meeting of the Board of Directors may be held at such place, either within or
without the State of Delaware, on such date and at such time as shall be
specified in a notice thereof given as hereinafter provided in Section 26 of
this Article III or in a waiver of notice thereof.
25. Regular Meetings
Regular meetings of the Board of Directors may be held at such places
within or without the State of Delaware at such date and time as the Board of
Directors may from time to time determine and, if so determined by the Board of
Directors, notices thereof need not be given.
26. Special Meetings
Special meetings of the Board of Directors for any purpose may be
called by the Chairman of the Board, the Chief Executive Officer, the President,
or the Secretary of the corporation or any two (2) directors.
27. Quorum
At all meetings of the Board of Directors, a majority of the authorized
number of directors shall constitute a quorum for the transaction of business
and the act of a majority of the directors present at any meeting at which there
is quorum shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum is not present at any meeting of the Board of Directors, then the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum is present. The
vote of the directors present shall be the act of the Board of Directors unless
the certificate of incorporation or the bylaws shall require a vote of a greater
number.
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28. Waiver of Notice
Whenever notice is required to be given under any provision of the
General Corporation Law of Delaware or of the certificate of incorporation or
these bylaws, a written waiver thereof, 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. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the directors, or members of a committee of directors, need be specified in
any written waiver of notice unless so required by the certificate of
incorporation or these bylaws.
29. Telephonic Meetings
Unless otherwise restricted by the certificate of incorporation,
members of the Board of Directors of the corporation, or any committee
designated by the Board of Directors, may participate in a meeting of the Board
of Directors or such committee, as the case may be, by conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other. Participation in a meeting pursuant to this
Section 29 shall constitute presence in person at such meeting.
30. Board Action By Written Consent Without A 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 of any committee thereof, may be taken without a meeting
if all members of the board or committee, as the case may be, consent thereto in
writing and the writing or writings are filed with the minutes of proceedings of
the board or committee.
31. Fees
Each director may receive such fees and other compensation, along with
reimbursement of expenses incurred on behalf of the corporation or in connection
with attendance at meetings, as the Board of Directors may from time to time
determine. No such payment of fees or other compensation shall preclude any
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director from serving the corporation in any other capacity and receiving fees
and compensation for such services.
32. Interested Directors
No contract or transaction between the corporation and one or more of
its directors or officers, or between the 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
directors or officers are present at or participate in the meeting of the Board
of Directors or the committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose
if: (i) the material facts as to his or their relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee in good faith
authorizes the contract or transaction by the affirmative vote of a majority of
the disinterested directors, even though the disinterested directors be less
than a quorum; or (ii) the material facts as to his or their relationship or
interest and as to the contract or transaction is specifically approved in good
faith by vote of the shareholders; or (iii) 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 stockholders. Common or
interested directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee which authorizes the
contract or transaction.
33. Committees of Directors
The Board of Directors may, by resolution passed by a majority of the
whole board, designate one or more committees, with each committee to consist of
one or more of the directors of the corporation. The board may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they 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 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
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corporation, and may authorize the seal of the corporation to be affixed to all
papers that may require it; but no such committee shall have the power or
authority to (i) amend the certificate of incorporation (except that a committee
may, to the extent authorized in the resolution or resolutions providing for the
issuance of shares of stock adopted by the Board of Directors as provided in
Section 151(a) of the General Corporation Law of Delaware, fix 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), (ii) adopt an agreement of merger or consolidation under Sections
251 or 252 of the General Corporation Law of Delaware, (iii) recommend to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, (iv) recommend to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or (v) amend
the bylaws of the corporation; and, unless the board resolution establishing the
committee, the bylaws or the certificate of incorporation expressly so 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 and
merger pursuant to Section 253 of the General Corporation Law of Delaware. Each
committee shall keep regular minutes of its meetings and report the same to the
Board of Directors when required.
ARTICLE IV
OFFICERS
34. Executive Officers
The executive officers of the corporation shall be a Chief Executive
Officer, President, a Chief Financial Officer and a Secretary who shall have the
duty, among other things, to record the proceedings of the meetings of
stockholders and directors in a book kept for that purpose. The corporation may
also have such other executive officers, including a Treasurer, Controller and
one or more Vice Presidents, as the Board may in its discretion appoint. The
Board of Directors, if it so determines, may appoint a Chairman of the Board and
a Vice Chairman of the Board from among its members. Any number of offices may
be held by the same person.
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35. Election, Term of Office and Remuneration
The executive officers of the corporation shall be elected annually by
the Board of Directors at a regular meeting thereof. Each such officer shall
hold office until his successor is elected and qualified, or until his earlier
death, resignation or removal. The remuneration of all officers of the
corporation shall be fixed by the Board of Directors. Any vacancy in any office
shall be filled in such manner as the Board of Directors shall determine.
36. Subordinate Officers
In addition to the executive officers enumerated in Section 34, the
corporation may have such subordinate officers, agents and employees as the
Board of Directors may deem necessary, each of whom shall hold office for such
period as the Board of Directors may from time to time determine. The Board of
Directors may delegate to any executive officer the power to appoint and to
remove any such subordinate officers, agents or employees.
37. Removal
Except as otherwise delegated to an executive officer with respect to
subordinate officers, any officer may be removed, with or without cause, at any
time, by resolution adopted by the Board of Directors. Such removal shall be
without prejudice to the contractual rights of such officer, if any, with the
corporation.
38. Resignations
Any officer may resign at any time by giving written notice to the
Board of Directors (or to a principal officer if the Board of Directors has
delegated to such principal officer the power to appoint and to remove such
officer). The resignation of any officer shall take effect upon receipt of
notice thereof or at such later time as shall be specified in such notice;
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
39. Powers and Duties
The Chief Executive Officer shall, subject to the direction and control
of the Board of Directors, be the general manager of, and supervise and direct,
the business and affairs of the corporation and the conduct of the officers of
the corporation. The
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other officers of the corporation shall have such powers and perform such duties
incident to each of their respective offices and such other duties as may from
time to time be conferred upon or assigned to them by the Board of Directors or
the Chief Executive Officer.
40. Approval of Loans to Officers
The corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or any 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 directors, such
loan, guaranty or assistance may reasonably be expected to benefit the
corporation. The loan, guaranty or other assistance may be with or without
interest and may be unsecured, or secured in such manner as the Board of
Directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing contained in this section shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the corporation at
common law or under any statute.
ARTICLE V
STOCK
41. Form of Certificates
Every holder of stock in the corporation shall be entitled to have a
certificate signed, in the name of the corporation (i) by the Chief Executive
Officer, (ii) by the Chairman of the Board of Directors or the President and
(iii) by the Secretary or an assistant secretary of the corporation, certifying
the number of shares owned by him in the corporation.
42. Signatures
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 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.
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43. Lost Certificates
The corporation may issue a new certificate to be issued in place of
any certificate theretofore issued by the corporation, alleged to have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate to be lost, stolen or destroyed. The corporation
may, in its discretion and as a condition precedent to the issuance of such new
certificate, require the owner of such lost, stolen, or destroyed certificate,
or his legal representative, to give the corporation a bond (or other security)
sufficient to indemnify it against any claim that may be made against the
corporation (including any expense or liability) on account of the alleged loss,
theft or destruction of any such certificate or the issuance of such new
certificate.
44. Transfers
Stock of the corporation shall be transferable in the manner prescribed
by law and in these bylaws or in any agreement with the stockholder making the
transfer. Transfers of stock shall be made on the books of the corporation only
by the person named in the certificate or by his attorney lawfully constituted
in writing and upon the surrender of the certificate therefor, which shall be
canceled before a new certificate shall be issued.
45. Registered Owners
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 required by law.
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ARTICLE VI
GENERAL PROVISIONS
46. Insurance
The corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation
or is or was serving at the request of the 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 the General Corporation Law of Delaware.
47. Dividends
Subject to limitations contained in the General Corporation Law of the
State of Delaware and the certificate of incorporation, the Board of Directors
may declare and pay dividends upon the shares of capital stock of the
corporation, which dividends may be paid either in cash, securities of the
corporation or other property.
48. Fiscal Year
The fiscal year of the corporation shall be fixed by resolution of the
Board of Directors.
49. Corporate Seal
The corporation may have a corporate seal in such form as prescribed by
the Board of Directors.
50. Amendments
Subject to the provisions of the certificate of incorporation, these
bylaws may be altered, amended or repealed at any regular meeting of the
stockholders (or at any special meeting thereof duly called for that purpose) by
a majority vote of the shares represented and entitled to vote at such meeting;
provided that in the notice of such special meeting, notice of such purpose
shall be given.
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Subject to the laws of the State of Delaware, the certificate of
incorporation and these bylaws, the Board of Directors may by majority vote of
those present at any meeting at which a quorum is present amend the bylaws, or
enact such other bylaws as in their judgment may be advisable for the regulation
of the conduct of the affairs of the corporation.
51. Voting of Stock Owned by the Corporation
The Board of Directors may authorize any person, on behalf of the
corporation, to attend, vote and grant proxies to be used at any meeting of
stockholders of any corporation (except this corporation) in which the
corporation may hold stock.
52. Construction and Definitions
Unless the context requires otherwise, the general provisions, rules of
construction and definitions in the General Corporation Law of the State of
Delaware shall govern the construction of these bylaws.
ARTICLE VII
INDEMNIFICATION
53. Indemnifications
The corporation, to the maximum extent permitted by the Delaware
General Corporation Law, shall have the power to indemnify any of its agents
against expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with any proceeding or potential proceeding
arising out of the relationship and, to the maximum extent permitted by law, the
corporation shall have the power to advance the agent's reasonable defense
expenses in any such proceeding.
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