- Stockholders
.
- Place of Meetings
. All meetings of stockholders shall be held at such place within or
without the State of Delaware as may be designated from time to time by the Board of Directors or
the President and Chief Executive Officer or, if not so designated, at the registered office of the
corporation.
- Annual Meeting
. The annual meeting of stockholders for the election of directors and for
the transaction of such other business as may properly be brought before the meeting shall be held
on a date to be fixed by the Board of Directors or the President and Chief Executive Officer at the
time and place to be fixed by the Board of Directors or the President and stated in the notice of
the meeting. If no annual meeting is held in accordance with the foregoing provisions, the Board of
Directors shall cause the meeting to be held as soon thereafter as convenient.
- Special Meetings
. Subject to any provision to the contrary in the Certificate of
Incorporation, special meetings of stockholders may be called at any time by the Board of Directors,
the Chairman of the Board or the President and Chief Executive Officer. Any such request shall
state the purposes of the proposed meeting. Business transacted at any special meeting of
stockholders shall be confined to the purpose or purposes stated in the notice of meeting. As soon
as reasonably practicable after receipt of such a request, written notice of such meeting complying
with Section 1.4 below shall be given.
- Notice of Meetings. Written notice of each annual meeting of
stockholders shall be given not less than ten (10) nor more than sixty (60) days before the date on
which the meeting is to be held. Written notice of each special meeting of stockholders shall be
given not less than sixty (60) days before the date on which the meeting is to be held. The notice
required by this Section 1.4 shall be given to each stockholder entitled to vote at such annual or
special meeting, except as otherwise provided herein or as required by law (meaning here and
hereafter, as required from time to time by the Delaware General Corporation Law or the Certificate
of Incorporation). The notices of all meetings shall state the place, date and hour of the meeting.
The notice of a special meeting shall state, in addition, the purpose or purposes for which the
meeting is called. If mailed, notice 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.
- Voting List
. The officer who has charge of the stock ledger of the corporation shall
prepare, at least ten (10) days before each 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.
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 (10) days prior to the
meeting, at a place within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting during the whole time
of the meeting, and may be inspected by any stockholder who is present. This list shall
presumptively determine the identity of the stockholders entitled to vote at the meeting and the
number of shares held by each of them.
- Quorum
. Except as otherwise provided by law or these bylaws, the holders of a majority
of the shares of the capital stock of the corporation entitled to vote at the meeting, present in
person or represented by proxy, shall constitute a quorum for the transaction of business. If a
quorum shall fail to attend any meeting, the chairman of the meeting or the holders of a majority of
the shares of stock entitled to vote who are present, in person or by proxy, may adjourn the meeting
to another place, date or time.
If a notice of any adjourned special meeting of stockholders is sent to all stockholders entitled
to vote thereat, stating that it will be held with those present constituting a quorum, then except
as otherwise required by law, those present at such adjourned meeting shall constitute a quorum, and
all matters shall be determined by a majority of the votes cast at such meeting.
- Adjournments
. Any meeting of stockholders may be adjourned to any other time and to any
other place at which a meeting of stockholders may be held under these bylaws by the holders of a
majority of the shares of stock present or represented at the meeting and entitled to vote, although
less than a quorum, or, if no stockholder is present, by any officer entitled to preside at or to
act as Secretary of such meeting. When a meeting is adjourned to another place, date or time,
written notice need not be given of the adjourned meeting if the place, date and time thereof are
announced at the meeting at which the adjournment is taken; provided, however, that if the date of
any adjourned meeting is more than thirty (30) days after the date for which the meeting was
originally noticed, or if a new record date is fixed for the adjourned meeting, written notice of
the place, date, and time of the adjourned meeting shall be given in conformity herewith. At the
adjourned meeting, the corporation may transact any business which might have been transacted at the
original meeting.
- Voting and Proxies
. Each stockholder shall have one vote for each share of stock
entitled to vote held of record by such stockholder and a proportionate vote for each fractional
share so held, unless otherwise provided by law. Each stockholder of record entitled to vote at a
meeting of stockholders, may vote in person or may authorize any other person or persons to vote or
act for him by written proxy executed by the stockholder or his authorized agent or by a
transmission permitted by law and delivered to the Secretary of the corporation. No stockholder may
authorize more than one proxy for his shares. Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission created pursuant to 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
transmission or other reproduction shall be a complete reproduction of the entire original writing
or transmission.
- Action at Meeting
. When a quorum is present at any meeting, any election shall be
determined by a plurality of the votes cast by the stockholders entitled to vote at the election,
and all other matters shall be determined by a majority of the votes cast affirmatively or
negatively on the matter (or if there are two or more classes of stock entitled to vote as separate
classes, then in the case of each such class, a majority of each such class present or represented
and voting affirmatively or negatively on the matter) shall decide such matter, except when a
different vote is required by express provision of law, the Certificate of Incorporation or these
bylaws.
All voting, including on the election of directors, but excepting where otherwise required by
law, may be by a voice vote; provided, however, that upon demand therefor by a stockholder entitled
to vote or his or her proxy, a stock vote shall be taken. Every stock vote shall be taken by
ballots, each of which shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting. Every vote taken by
ballots shall be counted by an inspector or inspectors appointed by the chairman of the meeting.
The corporation may, and to the extent required by law, 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 an alternate inspector 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 may, and to the extent required by law, 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 or her ability.
- Notice of Stockholder Business
. 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 (i) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of Directors, (ii) properly
brought before the meeting by or at the direction of the Board of Directors, or (iii) properly
brought before an annual meeting by a stockholder. 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 proposal to be presented at an annual
meeting shall be received at the Corporation's principal executive offices not less than
120 calendar days in advance of the date that the Corporation's (or the Corporation's
predecessor's) proxy statement was released to stockholders in connection with the previous year's
annual meeting of stockholders, except that if no annual meeting was held in the previous year or
the date of the annual meeting has been advanced by more than 30 calendar days from the date
contemplated at the time of the previous year's proxy statement, notice by the stockholders to be
timely must be received not later than the close of business on the tenth day following the day on
which the date of the annual meeting is publicly announced.
A stockholder's notice to the Secretary of the Corporation 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, (ii) the name and address, as they appear on
the Corporation's books, 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.
- Conduct of Business
. At every meeting of the stockholders, the Chairman of the Board, if
there is such an officer, or if not, the person appointed by the Board of Directors, shall act as
Chairman. The Secretary of the corporation or a person designated by the Chairman of the meeting
shall act as Secretary of the meeting. Unless otherwise approved by the Chairman of the meeting,
attendance at the stockholders' meeting is restricted to stockholders of record, persons authorized
in accordance with Section 1.8 of these bylaws to act by proxy, and officers of the
corporation.
The Chairman of the meeting shall call the meeting to order, establish the agenda, and conduct
the business of the meeting in accordance therewith or, at the Chairman's discretion, it may be
conducted otherwise in accordance with the wishes of the stockholders in attendance. The date and
time of the opening and closing of the polls for each matter upon which the stockholders will vote
at the meeting shall be announced at the meeting.
The Chairman shall also conduct the meeting in an orderly manner, rule on the precedence of, and
procedure on, motions and other procedural matters, and exercise discretion with respect to such
procedural matters with fairness and good faith toward all those entitled to take part. The
Chairman may impose reasonable limits on the amount of time taken up at the meeting on discussion in
general or on remarks by any one stockholder. Should any person in attendance become unruly or
obstruct the meeting proceedings, the Chairman shall have the power to have such person removed from
participation. Notwithstanding anything in these bylaws to the contrary, no business shall be
conducted at a meeting except in accordance with the procedures set forth in this Section 1.11
and Section 1.10 above. The Chairman of a meeting shall, if the facts warrant, determine and
declare to the meeting that any proposed item of business was not brought before the meeting in
accordance with the provisions of this Section 1.11 and Section 1.10, 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.
- No Stockholder Action Without Meeting
. 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
stockholders of the Corporation and may not be effected by any consent in writing by such
stockholders.
- Board of Directors
.
- General Powers
. The business and affairs of the corporation shall be managed by or under
the direction of a Board of Directors, who may exercise all of the powers of the corporation except
as otherwise provided by law or the Certificate of Incorporation. In the event of a vacancy in the
Board of Directors, the remaining directors, except as otherwise provided by law, may exercise the
powers of the full Board until the vacancy is filled.
- Number and Term of Office
. The number of directors shall initially be seven (7) and,
thereafter, shall be fixed from time to time exclusively by the Board of Directors pursuant to a
resolution adopted by a majority of the total number of authorized directors (whether or not there
exist any vacancies in previously authorized directorships at the time any such resolution is
presented to the Board for adoption). All directors shall hold office until the expiration of the
term for which elected and until their respective successors are elected, except in the case of the
death, resignation or removal of any director.
- Vacancies and Newly Created Directorships
. 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 or other cause (including removal from office by a
vote of the stockholders) may be filled only by a majority vote of the directors then in office,
though less than a quorum, and directors so chosen shall hold office for a term expiring at the next
annual meeting of stockholders at which the term of office 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.
- Resignation
. Any director may resign by delivering his written resignation to the
corporation at its principal office or to the President or Secretary. Such resignation shall be
effective upon receipt unless it is specified to be effective at some other time or upon the
happening of some other event.
- Regular Meetings
. Regular meetings of the Board of Directors may be held without notice
at such time and place, either within or without the State of Delaware, as shall be determined from
time to time by the Board of Directors; provided that any director who is absent when such a
determination is made shall be given notice of the determination. A regular meeting of the Board of
Directors may be held without notice immediately after and at the same place as the annual meeting
of stockholders.
- Special Meetings
. Special meetings of the Board of Directors may be held at any time and
place, within or without the State of Delaware, designated in a call by the Chairman of the Board,
the President and Chief Executive Officer, two or more directors, or by one director in the event
that there is only a single director in office.
- Notice of Special Meetings
. Notice of any special meeting of directors shall be given to
each director by the Secretary or by the officer or one of the directors calling the meeting.
Notice shall be duly given to each director (i) by giving notice to such director in person or
by telephone or electronic voice message system at least 24 hours in advance of the meeting,
(ii) by sending a telegram, telecopy or telex, or delivering written notice by hand, to his
last known business or home address at least 24 hours in advance of the meeting, or
(iii) by mailing written notice to his last known business or home address at least three (3)
day in advance of the meeting. A notice or waiver of notice of a meeting of the Board of Directors
need not specify the purposes of the meeting. Unless otherwise indicated in the notice thereof, any
and all business may be transacted at a special meeting.
- Participation in Meetings by Telephone Conference Calls
. Directors or any members of any
committee designated by the directors may participate in a meeting of the Board of Directors or such
committee by means of conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation by such means shall
constitute presence in person at such meeting.
- Quorum
. A majority of the total number of authorized directors shall constitute a quorum
at any meeting of the Board of Directors. In the event one or more of the directors shall be
disqualified to vote at any meeting, then the required quorum shall be reduced by one for each such
director so disqualified; provided, however, that in no case shall less than one-third (1/3) of the
number so fixed constitute a quorum. In the absence of a quorum at any such meeting, a majority of
the directors present may adjourn the meeting from time to time without further notice other than
announcement at the meeting, until a quorum shall be present. Interested directors may be counted
in determining the presence of a quorum at a meeting of the Board of Directors or at a meeting of a
committee which authorizes a particular contract or transaction.
- Action at Meeting
. At any meeting of the Board of Directors at which a quorum is
present, the vote of a majority of those present shall be sufficient to take any action, unless a
different vote is specified by law, the Certificate of Incorporation or these bylaws.
- Action by Consent
. Any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee of the Board of Directors may be taken without a meeting, if
all members of the Board or committee, as the case may be, consent to the action in writing. Any
such written consents shall be filed with the minutes of proceedings of the Board or committee.
- Removal
. Subject to the rights of the holders of any series of Preferred Stock then
outstanding, any directors, or the entire Board of Directors, may be removed from office at any
time, but only for cause and only by the affirmative vote of the holders of at least a majority of
the voting power of all of the outstanding shares of capital stock entitled to vote generally in the
election of directors, voting together as a single class.
- Committees
. The Board of Directors may designate one or more committees, each committee
to consist of one or more of the directors of the corporation, with such lawfully delegated powers
and duties as it therefor confers, to serve at the pleasure of the Board. 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 of the committee 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 and
subject to the provisions of the General Corporation Law of the State of Delaware, shall have and
may exercise all the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation and may authorize the seal of the corporation to be affixed
to all papers which may require it. Each such committee shall keep minutes and make such reports as
the Board of Directors may from time to time request. Except as the Board of Directors may
otherwise determine, any committee may make rules for the conduct of its business, but unless
otherwise provided by such rules, its business shall be conducted as nearly as possible in the same
manner as is provided in these bylaws for the Board of Directors.
- Compensation of Directors
. Directors may be paid such compensation for their services
and such reimbursement for expenses of attendance at meetings as the Board of Directors may from
time to the determine. No such payment shall preclude any director from serving the corporation or
any of its parent or subsidiary corporations in any other capacity and receiving compensation for
such service.
- Nomination of Director Candidates
. Subject to the rights of holders of any class or
series of Preferred Stock then outstanding, nominations for the election of Directors may be made by
the Board of Directors or a proxy committee appointed by the Board of Directors or by any
stockholder entitled to vote in the election of Directors generally. However, any stockholder
entitled to vote in the election of Directors generally may nominate one or more persons for
election as Directors at a meeting only if timely notice of such stockholder's intent to make such
nomination or nominations has been given in writing to the Secretary of the Corporation. To be
timely, a stockholder nomination for a director to be elected at an annual meeting shall be received
at the Corporation's principal executive offices not less than 120 calendar days in advance of
the date that the Corporation's (or the Corporation's predecessor's) proxy statement was released to
stockholders in connection with the previous year's annual meeting of stockholders, except that if
no annual meeting was held in the previous year or the date of the annual meeting has been changed
by more than 30 calendar days from the date contemplated at the time of the previous year's
proxy statement, or in the event of a nomination for director to be elected at a special meeting,
notice by the stockholders to be timely must be received not later than the close of business on the
tenth day following the day on which such notice of the date of the special meeting was mailed or
such public disclosure was made. Each such notice shall set forth: (a) the name and address
of the stockholder who intends to make the nomination and of the person or persons to be nominated;
(b) a representation that the stockholder is a holder of record of stock of the Corporation
entitled to vote for the election of directors on the date of such notice and intends to appear in
person or by proxy at the meeting to nominate the person or persons specified in the notice;
(c) a description of all arrangements or understandings between the stockholder and each
nominee and any other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (d) such other information
regarding each nominee proposed by such stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange Commission, had the
nominee been nominated, or intended to be nominated, by the Board of Directors; and (e) the
consent of each nominee to serve as a director of the Corporation if so elected.
In the event that a person is validly designated as a nominee in accordance with this
Section 2.15 and shall thereafter become unable or unwilling to stand for election to the Board
of Directors, the Board of Directors or the stockholder who proposed such nominee, as the case may
be, may designate a substitute nominee upon delivery, not fewer than five days prior to the date of
the meeting for the election of such nominee, of a written notice to the Secretary setting forth
such information regarding such substitute nominee as would have been required to be delivered to
the Secretary pursuant to this Section 2.15 had such substitute nominee been initially proposed
as a nominee. Such notice shall include a signed consent to serve as a director of the Corporation,
if elected, of each such substitute nominee.
If the chairman of the meeting for the election of Directors determines that a nomination of any
candidate for election as a Director at such meeting was not made in accordance with the applicable
provisions of this Section 2.15, such nomination shall be void; provided, however, that nothing
in this Section 2.15 shall be deemed to limit any voting rights upon the occurrence of dividend
arrearages provided to holders of Preferred Stock pursuant to the Preferred Stock designation for
any series of Preferred Stock.
- Officers
.
- Enumeration
. The officers of the corporation shall consist of a President and Chief
Executive Officer, a Secretary, a Chief Financial Officer and such other officers with such other
titles as the Board of Directors shall determine, including, at the discretion of the Board of
Directors, a Chairman of the Board, and one or more Vice Presidents and Assistant Secretaries. The
Board of Directors may appoint such other officers as it may deem appropriate.
- Election
. Officers shall be elected annually by the Board of Directors at its first
meeting following the annual meeting of stockholders. Officers may be appointed by the Board of
Directors at any other meeting.
- Qualification
. No officer need be a stockholder. Any two or more offices may be held by
the same person.
- Tenure
. Except as otherwise provided by law, by the Certificate of Incorporation or by
these bylaws, each officer shall hold office until his successor is elected and qualified, unless a
different term is specified in the vote appointing him, or until his earlier death, resignation or
removal.
- Resignation and Removal
. Any officer may resign by delivering his written resignation to
the corporation at its principal office or to the President or Secretary. Such resignation shall be
effective upon receipt unless it is specified to be effective at some other time or upon the
happening of some other event. Any officer may be removed at any time, with or without cause, by
the Board of Directors.
- Chairman of the Board
. The Board of Directors may appoint a Chairman of the Board. If
the Board of Directors appoints a Chairman of the Board, he shall perform such duties and possess
such powers as are assigned to him by the Board of Directors. Unless otherwise provided by the
Board of Directors, he shall preside at all meetings of the stockholders, and, if he is a director,
at all meetings of the Board of Directors.
- President
. The President shall, subject to the direction of the Board of Directors, have
responsibility for the general management and control of the business and affairs of the Corporation
and shall perform all duties and have all powers which are commonly incident to the office of chief
executive or which are delegated to him or her by the Board of Directors. The President shall be
the Chief Executive Officer of the corporation. The President shall perform such other duties and
shall have such other powers as the Board of Directors may from time to time prescribe. He or she
shall have power to sign stock certificates, contracts and other instruments of the Corporation
which are authorized and shall have general supervision and direction of all of the other officers,
employees and agents of the Corporation, other than the Chairman of the Board.
- Vice Presidents
. Any Vice President shall perform such duties and possess such powers as
the Board of Directors or the President may from time to time prescribe. In the event of the
absence, inability or refusal to act of the President, the Vice President (or if there shall be more
than one, the Vice Presidents in the order determined by the Board of Directors) shall perform the
duties of the President and when so performing shall have at the powers of and be subject to all the
restrictions upon the President. The Board of Directors may assign to any Vice President the title
of Executive Vice President, Senior Vice President or any other title selected by the Board of
Directors.
- Secretary and Assistant Secretaries
. The Secretary shall perform such duties and shall
have such powers as the Board of Directors or the President may from time to time prescribe. In
addition, the Secretary shall perform such duties and have such powers as are incident to the office
of the Secretary, including, without limitation, the duty and power to give notices of all meetings
of stockholders and special meetings of the Board of Directors, to keep a record of the proceedings
of all meetings of stockholders and the Board of Directors, to maintain a stock ledger and prepare
lists of stockholders and their addresses as required, to be custodian of corporate records and the
corporate seal and to affix and attest to the same on documents.
Any Assistant Secretary shall perform such duties and possess such powers as the Board of
Directors, the President or the Secretary may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Secretary, the Assistant Secretary (or if there shall be
more than one, the Assistant Secretaries in the order determined by the Board of Directors) shall
perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting of stockholders or
directors, the person presiding at the meeting shall designate a temporary secretary to keep a
record of the meeting.
- Chief Financial Officer
. Unless otherwise designated by the Board of Directors, the
Chief Financial Officer shall be the Treasurer. The Chief Financial Officer shall perform such
duties and shall have such powers as may from time to time be assigned to him by the Board of
Directors or the President. In addition, the Chief Financial Officer shall perform such duties and
have such powers as are incident to the office of chief financial officer, including without
limitation, the duty and power to keep and be responsible for all funds and securities of the
corporation, to maintain the financial records of the Corporation, to deposit funds of the
corporation in depositories as authorized, to disburse such funds as authorized, to make proper
accounts of such funds, and to render as required by the Board of Directors accounts of all such
transactions and of the financial condition of the corporation.
- Salaries
. Officers of the corporation shall be entitled to such salaries, compensation
or reimbursement as shall be fixed or allowed from time to time by the Board of Directors.
- Delegation of Authority
. The Board of Directors may from time to time delegate the
powers or duties of any officer to any other officers or agents, notwithstanding any provision
hereof.
- Capital Stock
.
- Issuance of Stock
. Unless otherwise voted by the stockholders and subject to the
provisions of the Certificate of Incorporation, the whole or any part of any unissued balance of the
authorized capital stock of the corporation or the whole or any part of any unissued balance of the
authorized capital stock of the corporation held in its treasury may be issued, sold, transferred or
otherwise disposed of by vote of the Board of Directors in such manner, for such consideration and
on such terms as the Board of Directors may determine.
- Certificates of Stock
. Every holder of stock of the corporation shall be entitled to
have a certificate, in such form as may be prescribed by law and by the Board of Directors,
certifying the number and class of shares owned by him in the corporation. Each such certificate
shall be signed by, or in the name of the corporation by, the Chairman or Vice-Chairman, if any, of
the Board of Directors, or the President or a Vice President, and the Chief Financial Officer, or
the Secretary or an Assistant Secretary of the corporation. Any or all of the signatures on the
certificate may be a facsimile.
Each certificate for shares of stock which are subject to any restriction on transfer pursuant to
the Certificate of Incorporation, the bylaws, applicable securities laws or any agreement among any
number of shareholders or among such holders and the corporation shall have conspicuously noted on
the face or back of the certificate either the full text of the restriction or a statement of the
existence of such restriction.
- Transfers
. Except as otherwise established by rules and regulations adopted by the Board
of Directors, and subject to applicable law, shares of stock may be transferred on the books of the
corporation by the surrender to the corporation or its transfer agent of the certificate
representing such shares properly endorsed or accompanied by a written assignment or power of
attorney properly executed, and with such proof of authority or authenticity of signature as the
corporation or its transfer agent may reasonably require. Except as may be otherwise required by
law, by the Certificate of Incorporation or by the bylaws, the corporation shall be entitled to
treat the record holder of stock as shown on its books as the owner of such stock for all purposes,
including the payment of dividends and the right to vote with respect to such stock, regardless of
any transfer, pledge or other disposition of such stock until the shares have been transferred on
the books of the corporation in accordance with the requirements of these bylaws.
- Lost, Stolen or Destroyed Certificates
. The corporation may issue a new certificate of
stock in place of any previously saved certificate alleged to have been lost, stolen, or destroyed,
upon such terms and conditions as the Board of Directors may prescribe, including the presentation
of reasonable evidence of such loss, theft or destruction and the giving of such indemnity as the
Board of Directors may require for the protection of the corporation or any transfer agent or
registrar.
- Record Date
. The Board of Directors may fix in advance a date as a record date for the
determination of the stockholders entitled to notice of or to vote at any meeting of stockholders or
to express consent (or dissent) to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment of any rights in respect of any
change, concession or exchange of stock, or for the purpose of any other lawful action. Such record
date 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 to which such record date
relates.
If no record date is fixed, 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 before the day on
which notice is given, or, if notice is waived, at the close of business on the day before the day
on which the meeting is held. The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting when no prior action by the Board of
Directors is necessary, shall be the day on which the first written consent is expressed. 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 to such purpose.
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.
- General Provisions
.
- Fiscal Year
. The fiscal year of the corporation shall end on the 31st day of
December.
- Corporate Seal
. The corporate seal shall be in such form as shall be approved by the
Board of Directors.
- Waiver of Notice
. Whenever any notice whatsoever is required to be given by law, by the
Certificate of Incorporation or by these bylaws, a waiver of such notice either in writing signed by
the person entitled to such notice or such person's duly authorized attorney, or by telecopy,
telegraph, cable or any other available method, whether before, at or after the time stated in such
waiver, or the appearance of such person or persons at such meeting in person or by proxy, shall be
deemed equivalent to such notice.
- Actions with Respect to Securities of Other Corporations
. Except as the Board of
Directors may otherwise designate, the President or any officer of the corporation authorized by the
President shall have the power to vote and otherwise act on behalf of the corporation, in person or
proxy, and may waive notice of, and act as, or appoint any person or persons to act as, proxy or
attorney-in-fact to this corporation (with or without power of substitution) at any meeting of
stockholders or shareholders (or with respect to any action of stockholders) of any other
corporation or organization, the securities of which may be held by this corporation and otherwise
to exercise any and all rights and powers which this corporation may possess by reason of this
corporation's ownership of securities in such other corporation or other organization.
- Evidence of Authority
. A certificate by the Secretary, or an Assistant Secretary, or a
temporary Secretary, as to any action taken by the stockholders, directors, a committee or any
officer or representative of the corporation shall as to all persons who rely on the certificate in
good faith be conclusive evidence of such action.
- Certificate of Incorporation
. All references in these bylaws to the Certificate of
Incorporation shall be deemed to refer to the Certificate of Incorporation of the corporation, as
amended and in effect from time to time.
- Severability
. Any determination that any provision of these bylaws is for any reason
inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these
bylaws.
- Pronouns
. All pronouns used in these bylaws shall be deemed to refer to the masculine,
feminine or neuter, singular or plural, as the identity of the person or persons may require.
- Notices
. Except as otherwise specifically provided herein or required by law, all
notices required to be given to any stockholder, director, officer, employee or agent shall be in
writing and may in every instance be effectively given by hand delivery to the recipient thereof, by
depositing such notice in the mails, postage paid, or by sending such notice by prepaid telegram,
mailgram, telecopy or commercial courier service. Any such notice shall be addressed to such
stockholder, director, officer, employee or agent at his or her last known address as the same
appears on the books of the Corporation. The time when such notice shall be deemed to be given
shall be the time such notice is received by such stockholder, director, officer, employee or agent,
or by any person accepting such notice on behalf of such person, if hand delivered, or the time such
notice is dispatched, if delivered through the mails or be telegram or mailgram.
- Reliance Upon Books, Reports and Records
. Each director, each member of any committee
designated by the Board of Directors, and each officer of the Corporation shall, in the performance
of his duties, be fully protected in relying in good faith upon the books of account or other
records of the Corporation, including reports made to the Corporation by any of its officers, by an
independent certified public accountant, or by an appraiser selected with reasonable care.
- Time Periods
. In applying any provision of these bylaws which require that an act be
done or not done a specified number of days prior to an event or that an act be done during a period
of a specified number of days prior to an event, calendar days shall be used, the day of the doing
of the act shall be excluded, and the day of the event shall be included.
- Facsimile Signatures
. In addition to the provisions for use of facsimile signatures
elsewhere specifically authorized in these bylaws, facsimile signatures of any officer or officers
of the Corporation may be used whenever and as authorized by the Board of Directors or a committee
thereof.
- Amendments
.
- By the Board of Directors
. Except as is otherwise set forth in these bylaws or the
Certificate of Incorporation, these bylaws may be altered, amended or repealed or new bylaws may be
adopted by the affirmative vote of a majority of the directors present at any regular or special
meeting of the Board of Directors at which a quorum is present. Notwithstanding the foregoing,
amendment of Section 2.2 of these bylaws by the vote of the Board of Directors shall require a
resolution adopted by the affirmative vote of not less than sixty-six and two-thirds percent (66-
2/3%) of the directors.
- By the Stockholders
. Except as otherwise set forth in these bylaws, these bylaws may be
altered, amended or repealed or new bylaws may be adopted by the affirmative vote of the holders of
at sixty-six and two-thirds percent (66-2/3%) of the shares of the capital stock of the corporation
issued and outstanding and entitled to vote at any annual meeting of stockholders, or at any special
meeting of stockholders, provided notice of such alteration, amendment, repeal or adoption of
new bylaws shall have been stated in the notice of such special meeting.
- Indemnification of Directors and Officers
.
- Right to Indemnification
. Each person who was or is made a party or is threatened to be
made a party to or is involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative ("proceeding"), by reason of the fact that he or she or a
person of whom he or she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a director or officer 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 such proceeding is alleged
action in an official capacity as a director, officer or employee or in any other capacity while
serving as a director, officer or employee, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by Delaware Law, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said Law permitted the Corporation to
provide prior to such amendment) against all expenses, liability and loss reasonably incurred or
suffered by such person in connection therewith and such indemnification shall continue as to a
person who has ceased to be a director, officer or employee and shall inure to the benefit of his or
her heirs, executors and administrators; provided, however, that, except as provided
in Section 7.2 of this Article 7, the Corporation shall indemnify any such person seeking
indemnity in connection with an action, suit or proceeding (or part thereof) initiated by such
person only if (a) such indemnification is expressly required to be made by law, (b) the
action, suit or proceeding (or part thereof) was authorized by the Board of Directors of the
Corporation, (c) such indemnification is provided by the Corporation, in its sole discretion,
pursuant to the powers vested in the Corporation under the Delaware General Corporation Law, or
(d) the action, suit or proceeding (or part thereof) is brought to establish or enforce a right
to indemnification under an indemnity agreement or any other statute or law or otherwise as required
under Section 145 of the Delaware General Corporation Law. Such right shall be a contract
right and shall include the right to be paid by the Corporation expenses incurred in defending any
such proceeding in advance of its final disposition; provided, however, that, unless
the Delaware General Corporation Law then so prohibits, the payment of such expenses incurred by a
director or officer of the Corporation in his or her capacity as a director or officer (and not in
any other capacity in which service was or is tendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance of the final
disposition of such proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it
should be determined ultimately that such director or officer is not entitled to be indemnified
under this Section or otherwise.
- Right of Claimant to Bring Suit
. If a claim under Section 7.1 is not paid in full
by the Corporation within ninety (90) 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 such suit is not frivolous or brought in bad faith, the
claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other then an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required undertaking, if any,
has been tendered to this Corporation) that the claimant has not met the standards of conduct which
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 in the circumstances
because he or she 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 has 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.
- Indemnification of Employees and Agents
. The Corporation may, to the extent authorized
from time to time by the Board of Directors, grant rights to indemnification, and to the advancement
of related expenses, to any employee or agent of the Corporation to the fullest extent of the
provisions of this Article with respect to the indemnification of and advancement of expenses to
directors and officers of the Corporation.
- Non-Exclusivity of Rights
. The rights conferred on any person in Sections 7.1 and
7.2 shall not be exclusive of any other right which such persons may have or hereafter acquire under
any statute, provision of the Certificate of Incorporation, bylaw, agreement, vote of stockholders
or disinterested directors or otherwise.
- Indemnification Contracts
. The Board of Directors is authorized to enter into a contract
with any director, officer, employee or agent of the Corporation, or any person serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including employee benefit plans, providing
for indemnification rights equivalent to or, if the Board of Directors so determines, greater than,
those provided for in this Article 7.
- Insurance
. The Corporation shall maintain insurance to the extent reasonably available,
at its expense, to protect itself and any such director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other enterprise against
any such expense, liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware General Corporation
Law.
- Effect of Amendment
. Any amendment, repeal or modification of any provision of this
Article 7 by the stockholders and the directors of the Corporation shall not adversely affect
any right or protection of a director or officer of the Corporation existing at the time of such
amendment, repeal or modification.