EXHIBIT 3.8
BYLAWS
OF
JDS UNIPHASE CORPORATION
(formerly Uniphase Corporation)
a Delaware corporation
ARTICLE I
Offices
Section 1. Registered Office.
The registered office of the corporation in the State of
Delaware shall be in the City of Dover, County of Kent.
Section 2. Other Offices.
The corporation shall also have and maintain an office or
principal place of business at 163 Baypointe Parkway, San Jose,
California 95134, and 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' Meetings
Section 1. Place of Meetings.
Meetings of the stockholders of the corporation shall be
held at such place, either within or without the State of Delaware, as
may be designated from time to time by the Board of Directors,or, if not
so designated, then at the office of the corporation required to be
maintained pursuant to Section 2 of Article I hereof.
Section 2. Annual Meetings.
The annual meetings of the stockholders of the corporation,
commencing with the year 1994, for the purpose of election of directors
and for such other business as may lawfully come before it, shall be
held on such date and at such time as may be designated from time to
time by the Board of Directors.
Section 3. Special Meetings.
Special Meetings of the stockholders of the corporation may
be called, for any purpose or purposes, by the Chairman of the Board or
the Chief Executive Officer or the Board of Directors at any time,
subject to the rights of the holders of any stock having a preference
over the common stock as to dividends or liquidation. Stockholders are
not permitted to call a special meeting or to require the Board of
Directors to call a special meeting of stockholders.
Section 4. Notice of Meetings.
(a) Except as otherwise provided by law or the Certificate
of Incorporation, written notice of each meeting of stockholders,
specifying the place, date and hour and purpose or purposes of the
meeting, shall be given not less than ten nor more than sixty days
before the date of the meeting to each stockholder entitled to vote
thereat, directed to his address as it appears upon the books of the
corporation; except that where the matter to be acted on is a merger or
consolidation of the Corporation or a sale, lease or exchange of all or
substantially all of its assets, such notice shall be given not less
than twenty (20) nor more than sixty (60) days prior to such meeting.
(b) If at any meeting action is proposed to be taken
which, if taken, would entitle shareholders fulfilling the requirements
of section 262(d) of the Delaware General Corporation Law to an
appraisal of the fair value of their shares, the notice of such meeting
shall contain a statement of that purpose and to that effect and shall
be accompanied by a copy of that statutory section.
(c) When a meeting is adjourned to another time or place,
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
unless the adjournment is for more than thirty days, or unless after the
adjournment a new record date is fixed for the adjourned meeting, in
which event a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
(d) Notice of the time, place and purpose of any meeting
of stockholders may be waived in writing, either before or after such
meeting, and to the extent permitted by law, will be waived by any
stockholder by his attendance thereat, in person or by proxy. Any
stockholder so waiving notice of such meeting shall be bound by the
proceedings of any such meeting in all respects as if due notice thereof
had been given.
(e) Unless and until voted, every proxy shall be revocable
at the pleasure of the person who executed it or of his legal
representatives or assigns, except in those cases where an irrevocable
proxy permitted by statute has been given.
Section 5. Quorum and Voting.
(a) At all meetings of stockholders, except where
otherwise provided by law, the Certificate of Incorporation, or these
Bylaws, the presence, in person or by proxy duly authorized, of the
holders of a majority of the outstanding shares of stock entitled to
vote shall constitute a quorum for the transaction of business. Shares,
the voting of which at said meeting have been enjoined, or which for any
reason cannot be lawfully voted at such meeting, shall not be counted to
determine a quorum at said meeting. In the absence of a quorum, any
meeting of stockholders may be adjourned, from time to time, by vote of
the holders of a majority of the shares represented thereat, but no
other business shall be transacted at such meeting. At such adjourned
meeting at which a quorum is present or represented any business may be
transacted which might have been transacted at the original meeting.
The stockholders present at a duly called or convened 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.
(b) Except as otherwise provided by law, the Certificate
of Incorporation or these Bylaws, all action taken by the holders of a
majority of the voting power represented at any meeting at which a
quorum is present shall be valid and binding upon the corporation.
Section 6. Voting Rights.
(a) Except as otherwise provided by law, only persons in
whose names shares entitled to vote stand on the stock records of the
corporation on the record date for determining the stockholders entitled
to vote at said meeting shall be entitled to vote at such meeting.
Shares standing in the names of two or more persons shall be voted or
represented in accordance with the determination of the majority of such
persons, or, if only one of such persons is present in person or
represented by proxy, such person shall have the right to vote such
shares and such shares shall be deemed to be represented for the purpose
of determining a quorum.
(b) Every person entitled to vote or execute consents
shall have the right to do so either in person or by an agent or agents
authorized by a written proxy executed by such person or his duly
authorized agent, which proxy shall be filed with the Secretary of the
corporation at or before the meeting at which it is to be used. Said
proxy so appointed need not be a stockholder. No proxy shall be voted
on after three years from its date unless the proxy provides for a
longer period.
(c) Without limiting the manner in which a stockholder may
authorize another person or persons to act for him as proxy pursuant to
subsection (b) of this section, the following shall constitute a valid
means by which a stockholder may grant such authority:
(1) A stockholder may execute a writing authorizing
another person or persons to act for him as proxy. Execution may be
accomplished by the stockholder or his authorized officer, director,
employee or agent signing such writing or causing his or her signature
to be affixed to such writing by any reasonable means including, but not
limited to, by facsimile signature.
(2) A stockholder may authorize another person or
persons to act for him as proxy by transmitting or authorizing the
transmission of a telegram, cablegram, or other means of electronic
transmission to the person who will be the holder of the proxy or to a
proxy solicitation firm, proxy support service organization or like
agent duly authorized by the person who will be the holder of the proxy
to receive such transmission, provided that any such telegram, cablegram
or other means of electronic transmission must either set forth or be
submitted with information from which it can be determined that the
telegram, cablegram or other electronic transmission was authorized by
the stockholder. Such authorization can be established by the signature
of the stockholder on the proxy, either in writing or by a signature
stamp or facsimile signature, or by a number or symbol from which the
identity of the stockholder can be determined, or by any other procedure
deemed appropriate by the inspectors or other persons making the
determination as to due authorization. If it is determined that such
telegrams, cablegrams or other electronic transmissions are valid, the
inspectors or, if there are no inspectors, such other persons making
that determination shall specify the information upon which they relied.
(d) Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission created pursuant to
subsection (c) of this section may be substituted or used in lieu of the
original writing or transmission for any and all purposes for which the
original writing or transmission could be used, provided that such copy,
facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission.
Section 7. Voting Procedures and Inspectors of Elections.
(a) The corporation shall, in advance of any meeting of
stockholders, appoint one or more inspectors to act at the meeting and
make a written report thereof. The corporation may designate one or
more persons as alternate inspectors to replace any inspector who fails
to act. If no inspector or alternate is able to act at a meeting of
stockholders, the person presiding at the meeting shall appoint one or
more inspectors to act at the meeting. Each inspector, before entering
upon the discharge of his duties, shall take and sign an oath faithfully
to execute the duties of inspector with strict impartiality and
according to the best of his ability.
(b) The inspectors shall (i) ascertain the number of
shares outstanding and the voting power of each, (ii) determine the
shares represented at a meeting and the validity of proxies and ballots,
(iii) count all votes and ballots, (iv) determine and retain for a
reasonable period a record of the disposition of any challenges made to
any determination by the inspectors, and (v) certify their determination
of the number of shares represented at the meeting, and their count of
all votes and ballots. The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of the
duties of the inspectors.
(c) 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 shall be announced at the meeting. No ballot, proxies or votes,
nor any revocations thereof or changes thereto, shall be accepted by the
Inspectors after the closing of the polls unless the Court of Chancery
upon application by a stockholder shall determine otherwise.
(d) In determining the validity and counting of proxies
and ballots, the inspectors shall be limited to an examination of the
proxies, any envelopes submitted with those proxies, any information
provided in accordance with Section 212(c)(2) of the Delaware General
Corporation Law, ballots and the regular books and records of the
corporation, except that the inspectors may consider other reliable
information for the limited purpose of reconciling proxies and ballots
submitted by or on behalf of banks, brokers, their nominees or similar
persons which represent more votes than the holder of a proxy is
authorized by the record owner to cast or more votes than the
stockholder holds of record. If the inspectors consider other reliable
information for the limited purpose permitted herein, the inspectors at
the time they make their certification pursuant to subsection (b)(v) of
this section shall specify the precise information considered by them
including the person or persons from whom they obtained the information,
when the information was obtained, the means by which the information
was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
Section 8. List of Stockholders.
The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to
vote at said meeting, arranged in alphabetical order, showing the
address of and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held and
which place shall be specified in the notice of the meeting, or, if not
specified, at the place where said meeting is to be held, and the list
shall be produced and kept at the time and place of meeting during the
whole time thereof, and may be inspected by any stockholder who is
present.
Section 9. Stockholder Proposals at Annual Meetings.
At an annual meeting of the stockholders, only such business
shall be conducted as shall have been properly brought before the
meeting. To be properly brought before an annual meeting, business must
be specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors, otherwise properly
brought before the meeting by or at the direction of the Board of
Directors or otherwise properly brought before the meeting by a
stockholder. In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in
writing to the Secretary of the corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the corporation, not less than 30 days
nor more than 60 days prior to the meeting; provided, however, that in
the event that less than 40 days' notice or prior public disclosure of
the date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the close of
business on the 10th day following the day on which such notice of the
date of the annual meeting was mailed or such public disclosure was
made. A stockholder's notice to the Secretary shall set forth as to
each matter the stockholder proposes to bring before the annual meeting,
(i) 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, (ii) the name and record address of the stockholder
proposing such business, (iii) the class and number of shares of the
corporation which are beneficially owned by the stockholder, and
(iv) any material interest of the stockholder in such business.
Notwithstanding anything in the Bylaws to the contrary, no
business shall be conducted at the annual meeting except in accordance
with the procedures set forth in this Section 9, provided, however, that
nothing in this Section 9 shall be deemed to preclude discussion by any
stockholder of any business properly brought before the annual meeting
in accordance with said procedure.
The Chairman of an annual meeting shall, if the facts
warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the provisions of
this Section 9, and if he should so determine, he shall so declare to
the meeting and any such business not properly brought before the
meeting shall not be transacted.
Section 10. Nominations of Persons for Election to the Board of
Directors.
In addition to any other applicable requirements, only
persons who are nominated in accordance with the following procedures
shall be eligible for election as directors. Nominations of persons for
election to the Board of Directors of the corporation may be made at a
meeting of stockholders by or at the direction of the Board of
Directors, by any nominating committee or person appointed by the Board
of Directors or by any stockholder of the corporation entitled to vote
for the election of directors at the meeting who complies with the
notice procedures set forth in this Section 10. Such nominations, other
than those made by or at the direction of the Board of Directors, shall
be made pursuant to timely notice in writing to the Secretary of the
corporation. To be timely, a stockholder's notice shall be delivered to
or mailed and received at the principal executive offices of the
corporation not less than 30 days nor more than 60 days prior to the
meeting; provided, however, that in the event that less than 40 days\
notice or prior public disclosure of the date of the meeting is given or
made to stockholders, notice by the stockholder to be timely must be so
received not later than the close of business on the 10th day following
the day on which such notice of the date of the meeting was mailed or
such public disclosure was made. Such stockholder's notice shall set
forth (a) as to each person whom the stockholder proposes to nominate
for election or re-election as a director, (i) the name, age, business
address and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class and number of
shares of the corporation which are beneficially owned by the person,
and (iv) any other information relating to the person that is required
to be disclosed in solicitations for proxies for election of directors
pursuant to Rule 14a under the Securities Exchange Act of 1934; and
(b) as to the stockholder giving the notice, (i) the name and record
address of the stockholder, and (ii) the class and number of shares of
the corporation which are beneficially owned by the stockholder. The
corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the corporation to
determine the eligibility of such proposed nominee to serve as a
director of the corporation. No person shall be eligible for election
as a director of the corporation unless nominated in accordance with the
procedures set forth herein. These provisions shall not apply to
nomination of any persons entitled to be separately elected by holders
of preferred stock.
The Chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so determine,
he shall so declare to the meeting and the defective nomination shall be
disregarded.
Section 11. Action Without Meeting.
Unless otherwise provided in the Certificate of
Incorporation, any action required by statute to be taken at any annual
or special meeting of stockholders of the corporation, or any action
which may be taken at any annual or special meeting of such
stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the
action so taken, are signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled
to vote thereon were present and voted. To be effective, a written
consent must be delivered to the corporation by delivery to its
registered office in Delaware, its principal place of business, or an
officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to
a corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. 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 days of the earliest dated
consent delivered in the manner required by this Section to the
corporation, written consents signed by a sufficient number of holders
to take action are delivered to the corporation in accordance with this
Section. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
Directors
Section 1. Number and Term of Office.
The number of directors which shall constitute the whole of
the Board of Directors shall be ten (10). With the exception of the
first Board of Directors, which shall be elected by the incorporators,
and except as provided in Section 3 of this Article III, the directors
shall be elected by a plurality vote of the shares represented in person
or by proxy, at the stockholders annual meeting in each year and
entitled to vote on the election of directors. Elected directors shall
hold office until their successors shall be duly elected and qualified.
Directors need not be stockholders. If, for any cause, the Board of
Directors shall not have been elected at an annual meeting, they may be
elected as soon thereafter as convenient at a special meeting of the
stockholders called for that purpose in the manner provided in these
Bylaws.
Section 2. Powers.
The powers of the corporation shall be exercised, its
business conducted and its property controlled by or under the direction
of the Board of Directors.
Section 3. Vacancies.
Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a
majority of the directors then in office, although less than a quorum,
or by a sole remaining director, and each director so elected shall hold
office for the unexpired portion of the term of the director whose place
shall be vacant, and until his successor shall have been duly elected
and qualified. A vacancy in the Board of Directors shall be deemed to
exist under this section in the case of the death, removal or
resignation of any director, or if the stockholders fail at any meeting
of stockholders at which directors are to be elected (including any
meeting referred to in Section 4 below) to elect the number of directors
then constituting the whole Board.
Section 4. Resignations and Removals.
(a) Any director may resign at any time by delivering his
written resignation to the Secretary, such resignation to specify
whether it will be effective at a particular time, upon receipt by the
Secretary or at the pleasure of the Board of Directors. If no such
specification is made it shall be deemed effective at the pleasure of
the Board of Directors. When one or more directors shall resign from
the Board, effective at a future date, a majority of the directors then
in office, including those who have so resigned, shall have power to
fill such vacancy or vacancies, the vote thereon to take effect when
such resignation or resignations shall become effective, and each
director so chosen shall hold office for the unexpired portion of the
term of the director whose place shall be vacated and until his
successor shall have been duly elected and qualified.
(b) At a special meeting of stockholders called for the
purpose in the manner hereinabove provided, the Board of Directors, or
any individual director, may be removed from office, with or without
cause, and a new director or directors elected by a vote of stockholders
holding a majority of the outstanding shares entitled to vote at an
election of directors.
Section 5. Meetings.
(a) The annual meeting of the Board of Directors shall be
held immediately after the annual stockholders' meeting and at the place
where such meeting is held or at the place announced by the Chairman at
such meeting. No notice of an annual meeting of the Board of Directors
shall be necessary and such meeting shall be held for the purpose of
electing officers and transacting such other business as may lawfully
come before it.
(b) Except as hereinafter otherwise provided, regular
meetings of the Board of Directors shall be held in the office of the
corporation required to be maintained pursuant to Section 2 of Article I
hereof. Regular meetings of the Board of Directors may also be held at
any place within or without the State of Delaware which has been
designated by resolutions of the Board of Directors or the written
consent of all directors.
(c) Special meetings of the Board of Directors may be held
at any time and place within or without the State of Delaware whenever
called by the Chairman of the Board or, if there is no Chairman of the
Board, by the President, or by any of the directors.
(d) Written notice of the time and place of all regular
and special meetings of the Board of Directors shall be delivered
personally to each director or sent by telegram or facsimile
transmission at least 48 hours before the start of the meeting, or sent
by first class mail at least 120 hours before the start of the meeting.
Notice of any meeting may be waived in writing at any time before or
after the meeting and will be waived by any director by attendance
thereat.
Section 6. Quorum and Voting.
(a) A quorum of the Board of Directors shall consist of a
majority of the exact number of directors fixed from time to time in
accordance with Section I of Article III of these Bylaws, but not less
than one; provided, however, at any meeting whether a quorum be present
or otherwise, a majority of the directors present may adjourn from time
to time until the time fixed for the next regular meeting of the Board
of Directors, without notice other than by announcement at the meeting.
(b) At each meeting of the Board at which a quorum is
present all questions and business shall be determined by a vote of a
majority of the directors present, unless a different vote be required
by law, the Certificate of Incorporation, or these Bylaws.
(c) Any member of the Board of Directors, or of any
committee thereof, may participate in a meeting by means of conference
telephone or similar communication equipment by means of which all
persons participating in the meeting can hear each other, and
participation in a meeting by such means shall constitute presence in
person at such meeting.
(d) The transactions of any meeting of the Board of
Directors, or any committee thereof, however called or noticed, or
wherever held, shall be as valid as though had at a meeting duly held
after regular call and notice, if a quorum be present and if, either
before or after the meeting, each of the directors not present shall
sign a written waiver of notice, or a consent to holding such meeting,
or an approval of the minutes thereof. All such waivers, consents or
approvals shall be filed with the corporate records or made a part of
the minutes of the meeting.
Section 7. Action Without Meeting.
Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee
thereof may be taken without a meeting, if all members of the Board or
of such committee, as the case may be, consent thereto in writing, and
such writing or writings are filed with the minutes of proceedings of
the Board or committee.
Section 8. Fees and Compensation.
Directors and members of committees may receive such
compensation, if any, for their services, and such reimbursement for
expenses, as may be fixed or determined by resolution of the Board of
Directors.
Section 9. Committees.
(a) Executive Committee: The Board of Directors may, by
resolution passed by a majority of the whole Board, appoint an Executive
Committee of not less than one member, each of whom shall be a director.
The Executive Committee, to the extent permitted by law, shall have and
may exercise when the Board of Directors is not in session all powers of
the Board in the management of the business and affairs of the
corporation, including, without limitation, the power and authority to
declare a dividend or to authorize the issuance of stock, except such
committee shall not have the power or authority to amend the Certificate
of Incorporation, to adopt an agreement or merger or consolidation, to
recommend to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, to recommend
to the stockholders of the Corporation a dissolution of the Corporation
or a revocation of a dissolution, or to amend these Bylaws.
(b) Other Committees: The Board of Directors may, by
resolution passed by a majority of the whole Board, from time to time
appoint such other committees as may be permitted by law. Such other
committees appointed by the Board of Directors shall have such powers
and perform such duties as may be prescribed by the resolution or
resolutions creating such committee, but in no event shall any such
committee have the powers denied to the Executive Committee in these
Bylaws.
(c) Term: The members of all committees of the Board of
Directors shall serve a term coexistent with that of the Board of
Directors which shall have appointed such committee. The Board, subject
to the provisions of subsections (a) or (b) of this Section 9, may at
any time increase or decrease the number of members of a committee or
terminate the existence of a committee; provided, that no committee
shall consist of less than one member. The membership of a committee
member shall terminate on the date of his death or voluntary
resignation, but the Board may at any time for any reason remove any
individual committee member and the Board may fill any committee vacancy
created by death, resignation, removal or increase in the number of
members of the committee. The Board of Directors may designate one or
more directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee, and,
in addition, in the absence or disqualification of any 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.
(d) Meetings: Unless the Board of Directors shall
otherwise provide, regular meetings of the Executive Committee or any
other committee appointed pursuant to this Section 9 shall be held at
such times and places as are determined by the Board of Directors, or by
any such committee, and when notice thereof has been given to each
member of such committee, no further notice of such regular meetings
need be given thereafter; special meetings of any such committee may be
held at the principal office of the corporation required to be
maintained pursuant to Section 2 of Article I hereof; or at any place
which has been designated from time to time by resolution of such
committee or by written consent of all members thereof, and may be
called by any director who is a member of such committee, upon written
notice to the members of such committee of the time and place of such
special meeting given in the manner provided for the giving of written
notice to members of the Board of Directors of the time and place of
special meetings of the Board of Directors. Notice of any special
meeting of any committee may be waived in writing at any time after the
meeting and will be waived by any director by attendance thereat. A
majority of the authorized number of members of any such committee shall
constitute a quorum for the transaction of business, and the act of a
majority of those present at any meeting at which a quorum is present
shall be the act of such committee.
ARTICLE IV
Officers
Section 1. Officers Designated.
The officers of the corporation shall be a Chairman of the
Board of Directors and a President, each of whom shall be a member of
the Board of Directors, and one or more Vice-Presidents, a Secretary,
and a Treasurer. The order of the seniority of the Vice Presidents
shall be in the order of their nomination, unless otherwise determined
by the Board of Directors. The Board of Directors or the Chairman of
the Board or the President may also appoint one or more assistant
secretaries, assistant treasurers, and such other officers and agents
with such powers and duties as it or he shall deem necessary. The Board
of Directors may assign such additional titles to one or more of the
officers as they shall deem appropriate. Any one person may hold any
number of offices of the corporation at any one time unless specifically
prohibited therefrom by law. The salaries and other compensation of the
officers of the corporation shall be fixed by or in the manner
designated by the Board of Directors.
Section 2. Tenure and Duties of Officers.
(a) General: All officers shall hold office at the
pleasure of the Board of Directors and until their successors shall have
been duly elected and qualified, unless sooner removed. Any officer
elected or appointed by the Board of Directors may be removed at any
time by the Board of Directors. If the office of any officer becomes
vacant for any reason, the vacancy may be filled by the Board of
Directors. Nothing in these Bylaws shall be construed as creating any
kind of contractual right to employment with the corporation.
(b) Duties of the Chairman of the Board of Directors: The
Chairman of the Board of Directors (if there be such an officer
appointed) shall preside at all meetings of the shareholders and the
Board of Directors. The Chairman of the Board of Directors shall
perform such other duties and have such other powers as the Board of
Directors shall designate from time to time.
(c) Duties of President: The President shall be the chief
executive officer of the corporation (unless the Board of Directors
shall designate otherwise) and shall preside at all meetings of the
shareholders and at all meetings of the Board of Directors, unless the
Chairman of the Board of Directors has been appointed and is present.
The President shall perform such other duties and have such other powers
as the Board of Directors shall designate from time to time.
(d) Duties of Vice-Presidents: The Vice-Presidents, in
the order of their seniority, may assume and perform the duties of the
President in the absence or disability of the President or whenever the
office of the President is vacant. The Vice-President shall perform
such other duties and have such other powers as the Board of Directors
or the President shall designate from time to time.
(e) Duties of Secretary: The Secretary shall attend all
meetings of the shareholders and of the Board of Directors and any
committee thereof, and shall record all acts and proceedings thereof in
the minute book of the corporation. The Secretary shall give notice, in
conformity with these Bylaws, of all meetings of the shareholders, and
of all meetings of the Board of Directors and any Committee thereof
requiring notice. The Secretary shall perform such other duties and
have such other powers as the Board of Directors shall designate from
time to time. The President may direct any Assistant Secretary to
assume and perform the duties of the Secretary in the absence or
disability of the Secretary, and each Assistant Secretary shall perform
such other duties and have such other powers as the Board of Directors
or the President shall designate from time to time.
(f) Duties of Treasurer: The Treasurer shall keep or
cause to be kept the books of account of the corporation in a thorough
and proper manner, and shall render statements of the financial affairs
of the corporation in such form and as often as required by the Board of
Directors or the President. The Treasurer, subject to the order of the
Board of Directors, shall have the custody of all funds and securities
of the corporation. The Treasurer shall perform all other duties
commonly incident to his office and shall perform such other duties and
have such other powers as the Board of Directors or the President shall
designate from time to time. The President may direct any Assistant
Treasurer to assume and perform the duties of the Treasurer in the
absence or disability of the Treasurer, and each Assistant Treasurer
shall perform such other duties and have such other powers as the Board
of Directors or the President shall designate from time to time. At
the election of the Board of Directors, the duties of Treasurer shall be
performed by a Vice President designated by the Board of Directors to
perform financial functions.
ARTICLE V
Execution of Corporate Instruments, and
Voting of Securities Owned by the Corporation
Section 1. Execution of Corporate Instruments.
(a) The Board of Directors may, in its discretion,
determine the method and designate the signatory officer or officers, or
other person or persons, to execute any corporate instrument or
document, or to sign the corporate name without limitation, except where
otherwise provided by law, and such execution or signature shall be
binding upon the corporation.
(b) Unless otherwise specifically determined by the Board
of Directors or otherwise required by law, formal contracts of the
corporation, promissory notes, deeds of trust, mortgages and other
evidences of indebtedness of the corporation, and other corporate
instruments or documents requiring the corporate seal, and certificates
of shares of stock owned by the corporation, shall be executed, signed
or endorsed by the Chairman of the Board (if there be such an officer
appointed) or by the President; such documents may also be executed by
any Vice-President and by the Secretary or Treasurer or any Assistant
Secretary or Assistant Treasurer. All other instruments and documents
requiring the corporate signature, but not requiring the corporate seal,
may be executed as aforesaid or in such other manner as may be directed
by the Board of Directors.
(c) All checks and drafts drawn on banks or other
depositaries on funds to the credit of the corporation, or in special
accounts of the corporation, shall be signed by such person or persons
as the Board of Directors shall authorize so to do.
Section 2. Voting of Securities Owned by Corporation.
All stock and other securities of other corporations owned
or held by the corporation for itself, or for other parties in any
capacity, shall be voted, and all proxies with respect thereto shall be
executed, by the person authorized so to do by resolution of the Board
of Directors or, in the absence of such authorization, by the Chairman
of the Board (if there be such an officer appointed), or by the
President, or by any Vice-President.
ARTICLE VI
Shares of Stock
Section 1. Form and Execution of Certificates.
Certificates for the shares of stock of the corporation
shall be in such form as is consistent with the Certificate of
Incorporation and applicable law. Every holder of stock in the
corporation shall be entitled to have a certificate signed by, or in the
name of the corporation by, the Chairman of the Board (if there be such
an officer appointed), or by the President or any Vice-President and by
the Treasurer or Assistant Treasurer or the Secretary or Assistant
Secretary, certifying the number of shares owned by him in the
corporation. 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 with the same effect
as if he were such officer, transfer agent, or registrar at the date of
issue. If the corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers,
designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or
rights shall be set forth in full or summarized on the face or back of
the certificate which the corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in
section 202 of the Delaware General Corporation Law, in lieu of the
foregoing requirements, there may be set forth on the face or back of
the certificate which the corporation shall issue to represent such
class or series of stock, a statement that the corporation will furnish
without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Lost Certificates.
The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost or destroyed. When
authorizing such issue of a new certificate or certificates, the Board
of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to indemnify
the corporation in such manner as it shall require and/or to give the
corporation a surety bond in such form and amount 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 or destroyed.
Section 3. Transfers.
Transfers of record of shares of stock of the corporation
shall be made only upon its books by the holders thereof, in person or
by attorney duly authorized, and upon the surrender of a certificate or
certificates for a like number of shares, properly endorsed.
Section 4. Fixing Record Dates.
(a) 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, 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 record date shall not be more than sixty nor less
than ten days before the date of such meeting. If no record date is
fixed by the Board of Directors, 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 date on which the meeting is
held. A determination of stockholders of record entitled 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.
(b) 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 days after the date upon which the resolution
fixing the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, 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 the Delaware General Corporation 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 an officer or agent of the corporation having custody of
the book in which proceedings of meetings of stockholders are recorded.
Delivery made to a corporation's registered office 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 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 day on which the
Board of Directors adopts the resolution taking such prior action.
(c) In order that the corporation may determine the
stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders 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 a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted, and
which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on
the day on which the Board of Directors adopts the resolution relating
thereto.
Section 5. 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 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 VII
Other Securities of the Corporation
All bonds, debentures and other corporate securities of the
corporation, other than stock certificates, may be signed by the
Chairman of the Board (if there be such an officer appointed), or the
President or any Vice-President or such other person as may be
authorized by the Board of Directors and the corporate seal impressed
thereon or a facsimile of such seal imprinted thereon and attested by
the signature of the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer; provided, however, that where any
such bond, debenture or other corporate security shall be authenticated
by the manual signature of a trustee under an indenture pursuant to
which such bond, debenture or other corporate security shall be issued,
the signature of the persons signing and attesting the corporate seal on
such bond, debenture or other corporate security may be the imprinted
facsimile of the signatures of such persons. Interest coupons
appertaining to any such bond, debenture or other corporate security,
authenticated by a trustee as aforesaid, shall be signed by the
Treasurer or an Assistant Treasurer of the corporation, or such other
person as may be authorized by the Board of Directors, or bear imprinted
thereon the facsimile signature of such person. In case any officer who
shall have signed or attested any bond, debenture or other corporate
security, or whose facsimile signature shall appear thereon or before
the bond, debenture or other corporate security so signed or attested
shall have been delivered, such bond, debenture or other corporate
security nevertheless may be adopted by the corporation and issued and
delivered as though the person who signed the same or whose facsimile
signature shall have been used thereon had not ceased to be such officer
of the corporation.
ARTICLE VIII
Corporate Seal
The corporate seal shall consist of a die bearing the name
of the corporation and the state and date of its incorporation. Said
seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
ARTICLE IX
Indemnification of
Officers, Directors, Employees and Agents
Section 1. Right to Indemnification.
Each person who was or is a party or is threatened to be
made a party to or is involved (as a party, witness, or otherwise), in
any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"Proceeding"), by reason of the fact that he, or a person of whom he is
the legal representative, 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 or of a partnership, joint venture, trust, or other
enterprise, including service with respect to employee benefit plans,
whether the basis of the Proceeding is alleged action in an official
capacity as a director, officer, employee, or agent or in any other
capacity while serving as a director, officer, employee, or agent
(hereafter an "Agent"), shall be indemnified and held harmless by the
corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended or
interpreted (but, in the case of any such amendment or interpretation,
only to the extent that such amendment or interpretation permits the
corporation to provide broader indemnification rights than were
permitted prior thereto) against all expenses, liability, and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties, and amounts paid or to be paid in settlement, and any
interest, assessments, or other charges imposed thereon, and any
federal, state, local, or foreign taxes imposed on any Agent as a result
of the actual or deemed receipt of any payments under this Article)
reasonably incurred or suffered by such person in connection with
investigating, defending, being a witness in, or participating in
(including on appeal), or preparing for any of the foregoing in, any
Proceeding (hereinafter "Expenses"); provided, however, that except as
to actions to enforce indemnification rights pursuant to Section 3 of
this Article, the corporation shall indemnify any Agent seeking
indemnification in connection with a Proceeding (or part thereof)
initiated by such person only if the Proceeding (or part thereof) was
authorized by the Board of Directors of the corporation. The right to
indemnification conferred in this Article shall be a contract right.
Section 2. Authority to Advance Expenses.
Expenses incurred by an officer or director (acting in his
capacity as such) in defending a Proceeding shall be paid by the
corporation in advance of the final disposition of such Proceeding,
provided, however, that if required by the Delaware General Corporation
Law, as amended, such Expenses shall be advanced only upon delivery to
the corporation of an undertaking by or on behalf of such director or
officer 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 Article or otherwise. Expenses incurred by other Agents of the
corporation (or by the directors or officers not acting in their
capacity as such, including service with respect to employee benefit
plans) may be advanced upon such terms and conditions as the Board of
Directors deems appropriate. Any obligation to reimburse the
corporation for Expense advances shall be unsecured and no interest
shall be charged thereon.
Section 3. Right of Claimant to Bring Suit.
If a claim under Section 1 or 2 of this Article is not paid
in full by the corporation within 120 days after a written claim has
been received by the corporation, the claimant may at any time
thereafter bring suit against the corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense (including attorneys'
fees) of prosecuting such claim. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses
incurred in defending a Proceeding in advance of its final disposition
where the required undertaking has been tendered to the corporation)
that the claimant has not met the standards of conduct that make it
permissible under the Delaware General Corporation Law for the
corporation to indemnify the claimant for the amount claimed. Neither
the failure of the corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is proper under the circumstances
because he has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the
corporation (including its Board of Directors, independent legal
counsel, or its stockholders) that the claimant had not met such
applicable standard of conduct, shall be a defense to the action or
create a presumption that claimant has not met the applicable standard
of conduct.
Section 4. Provisions Nonexclusive.
The rights conferred on any person by this Article shall not
be exclusive of any other rights that such person may have or hereafter
acquire under any statute, provision of the Certificate of
Incorporation, 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. To the
extent that any provision of the Certificate, agreement, or vote of the
stockholders or disinterested directors is inconsistent with these
bylaws, the provision, agreement, or vote shall take precedence.
Section 5. Authority to Insure.
The corporation may purchase and maintain insurance to
protect itself and any Agent against any Expense, whether or not the
corporation would have the power to indemnify the Agent against such
Expense under applicable law or the provisions of this Article.
Section 6. Survival of Rights.
The rights provided by this Article shall continue as to a
person who has ceased to be an Agent and shall inure to the benefit of
the heirs, executors, and administrators of such a person.
Section 7. Settlement of Claims.
The corporation shall not be liable to indemnify any Agent
under this Article (a) for any amounts paid in settlement of any action
or claim effected without the corporation's written consent, which
consent shall not be unreasonably withheld; or (b) for any judicial
award if the corporation was not given a reasonable and timely
opportunity, at its expense, to participate in the defense of such
action.
Section 8. Effect of Amendment.
Any amendment, repeal, or modification of this Article shall
not adversely affect any right or protection of any Agent existing at
the time of such amendment, repeal, or modification.
Section 9. Subrogation.
In the event of payment under this Article, the corporation
shall be subrogated to the extent of such payment to all of the rights
of recovery of the Agent, who shall execute all papers required and
shall do everything that may be necessary to secure such rights,
including the execution of such documents necessary to enable the
corporation effectively to bring suit to enforce such rights.
Section 10. No Duplication of Payments.
The corporation shall not be liable under this Article to
make any payment in connection with any claim made against the Agent to
the extent the Agent has otherwise actually received payment (under any
insurance policy, agreement, vote, or otherwise) of the amounts
otherwise indemnifiable hereunder.
ARTICLE X
Notices
Whenever, under any provisions of these Bylaws, notice is
required to be given to any stockholder, the same shall be given in
writing, timely and duly deposited in the United States Mail, postage
prepaid, and addressed to his last known post office address as shown by
the stock record of the corporation or its transfer agent. Any notice
required to be given to any director may be given by the method
hereinabove stated, or by telegram or other means of electronic
transmission, except that such notice other than one which is delivered
personally, shall be sent to such address or (in the case of facsimile
telecommunication) facsimile telephone number as such director shall
have filed in writing with the Secretary of the corporation, or, in the
absence of such filing, to the last known post office address of such
director. If no address of a stockholder or director be known, such
notice may be sent to the office of the corporation required to be
maintained pursuant to Section 2 of Article I hereof. An affidavit of
mailing, executed by a duly authorized and competent employee of the
corporation or its transfer agent appointed with respect to the class of
stock affected, specifying the name and address or the names and
addresses of the stockholder or stockholders, director or directors, to
whom any such notice or notices was or were given, and the time and
method of giving the same, shall be conclusive evidence of the
statements therein contained. All notices given by mail, as above
provided, shall be deemed to have been given as at the time of mailing
and all notices given by telegram or other means of electronic
transmission shall be deemed to have been given as at the sending time
recorded by the telegraph company or other electronic transmission
equipment operator transmitting the same. It shall not be necessary
that the same method of giving be employed in respect of all directors,
but one permissible method may be employed in respect of any one or
more, and any other permissible method or methods may be employed in
respect of any other or others. The period or limitation of time within
which any stockholder may exercise any option or right, or enjoy any
privilege or benefit, or be required to act, or within which any
director may exercise any power or right, or enjoy any privilege,
pursuant to any notice sent him in the manner above provided, shall not
be affected or extended in any manner by the failure of such a
stockholder or such director to receive such notice. Whenever any
notice is required to be given under the provisions of the statutes or
of the Certificate of Incorporation, or of these Bylaws, a waiver
thereof in writing signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. Whenever notice is required to be given, under any
provision of law or of the Certificate of Incorporation or Bylaws of the
corporation, to any person with whom communication is unlawful, the
giving of such notice to such person shall not be required and there
shall be no duty to apply to any governmental authority or agency for a
license or permit to give such notice to such person. Any action or
meeting which shall be taken or held without notice to any such person
with whom communication is unlawful shall have the same force and effect
as if such notice had been duly given. In the event that the action
taken by the corporation is such as to require the filing of a
certificate under any provision of the Delaware General Corporation Law,
the certificate shall state, if such is the fact and if notice is
required, that notice was given to all persons entitled to receive
notice except such persons with whom communication is unlawful.
ARTICLE XI
Amendments
These Bylaws may be repealed, altered or amended or new
Bylaws adopted by written consent of stockholders in the manner
authorized by Section 8 of Article II, or at any meeting of the
stockholders, either annual or special, by the affirmative vote of a
majority of the stock entitled to vote at such meeting. The Board of
Directors shall also have the authority to repeal, alter or amend these
Bylaws or adopt new Bylaws (including, without limitation, the amendment
of any Bylaws setting forth the number of directors who shall constitute
the whole Board of Directors) by unanimous written consent or at any
annual, regular, or special meeting by the affirmative vote of a
majority of the whole number of directors, subject to the power of the
stockholders to change or repeal such Bylaws and provided that the Board
of Directors shall not make or alter any Bylaws fixing the
qualifications, classifications, or term of office of directors.
