EXHIBIT 3.128
BYLAWS
OF
TITAN SCAN TECHNOLOGIES CORPORATION
(A DELAWARE CORPORATION)
TABLE OF CONTENTS
PAGE
ARTICLE I Offices .................................................................................................1
Section 1. Registered Office..............................................................1
Section 2. Other Offices..................................................................1
ARTICLE II Corporate Seal..........................................................................................1
Section 3. Corporate Seal.................................................................1
ARTICLE III Stockholders' Meetings.................................................................................1
Section 4. Place of Meetings..............................................................1
Section 5. Annual Meeting.................................................................1
Section 6. Special Meetings...............................................................4
Section 7. Notice of Meetings.............................................................4
Section 8. Quorum.........................................................................4
Section 9. Adjournment and Notice of Adjourned Meetings...................................5
Section 10. Voting Rights..................................................................5
Section 11. Joint Owners of Stock..........................................................5
Section 12. List of Stockholders...........................................................6
Section 13. Action Without Meeting.........................................................6
Section 14. Organization...................................................................7
ARTICLE IV Directors...............................................................................................7
Section 15. Number and Term of Office......................................................7
Section 16. Powers.........................................................................8
Section 17. Term of Directors..............................................................8
..
Section 18. Vacancies......................................................................8
Section 19. Resignation....................................................................8
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PAGE
Section 20. Removal.......................................................................9
Section 21. Meetings......................................................................9
(a) Annual Meetings......................................................9
(b) Regular Meetings.....................................................9
(c) Special Meetings.....................................................9
(d) Telephone Meetings...................................................9
(e) Notice of Meetings...................................................9
(f) Waiver of Notice.....................................................9
Section 22. Quorum and Voting............................................................10
Section 23. Action Without Meeting.......................................................10
Section 24. Fees and Compensation........................................................10
Section 25. Committees...................................................................10
(a) Executive Committee.................................................10
(b) Other Committees....................................................11
(c) Term................................................................11
(d) Meetings............................................................11
Section 26. Organization.................................................................12
ARTICLE V Officers...............................................................................................12
Section 27. Officers Designated..........................................................12
Section 28. Tenure and Duties of Officers................................................12
(a) General.............................................................12
(b) Duties of Chairman of the Board of Directors........................12
(c) Duties of President.................................................12
(d) Duties of Vice Presidents...........................................13
(e) Duties of Secretary.................................................13
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PAGE
(f) Duties of Chief Financial Officer...................................13
Section 29. Delegation of Authority......................................................14
Section 30. Resignations.................................................................14
Section 31. Removal......................................................................14
ARTICLE VI Execution of Corporate Instruments and Voting of Securities Owned by the Corporation..................14
Section 32. Execution of Corporate Instruments...........................................14
Section 33. Voting of Securities Owned by the Corporation................................14
ARTICLE VII Shares of Stock......................................................................................15
Section 34. Form and Execution of Certificates...........................................15
Section 35. Lost Certificates............................................................15
Section 36. Transfers....................................................................15
Section 37. Fixing Record Dates..........................................................16
Section 38. Registered Stockholders......................................................17
ARTICLE VIII Other Securities of the Corporation.................................................................17
Section 39. Execution of Other Securities................................................17
ARTICLE IX Dividends 18
Section 40. Declaration of Dividends.....................................................18
Section 41. Dividend Reserve.............................................................18
ARTICLE X Fiscal Year............................................................................................18
Section 42. Fiscal Year..................................................................18
ARTICLE XI Indemnification.......................................................................................18
Section 43. Indemnification of Directors, Executive Officers, Other Officers,
Employees and Other Agents..................................................18
(a) Directors and Executive Officers....................................18
(b) Other Officers, Employees and Other Agents..........................19
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PAGE
(c) Expenses............................................................19
(d) Enforcement.........................................................19
(e) Non-Exclusivity of Rights...........................................20
(f) Survival of Rights..................................................20
(g) Insurance...........................................................20
(h) Amendments..........................................................20
(i) Saving Clause.......................................................20
(j) Certain Definitions.................................................21
ARTICLE XII Notices..............................................................................................22
Section 44. Notices......................................................................22
(a) Notice to Stockholders..............................................22
(b) Notice to Directors.................................................22
(c) Affidavit of Mailing................................................22
(d) Time Notices Deemed Given...........................................22
(e) Methods of Notice...................................................22
(f) Failure to Receive Notice...........................................22
(g) Notice to Person with Whom Communication Is Unlawful................23
(h) Notice to Person with Undeliverable Address.........................23
ARTICLE XIII Amendments..........................................................................................23
Section 45. Amendments...................................................................23
ARTICLE XIV Right of First Refusal...............................................................................24
Section 46. Right of First Refusal.......................................................24
ARTICLE XV Loans to Officers.....................................................................................26
Section 47. Loans to Officers............................................................26
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PAGE
ARTICLE XVI Miscellaneous........................................................................................27
Section 48. Annual Report................................................................27
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BYLAWS
OF
TITAN SCAN TECHNOLOGIES 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 Wilmington, County
of New Castle. (Del. Code Ann., tit. 8, ss. 131)
Section 2. OTHER OFFICES. The corporation shall also have and
maintain an office or principal place of business at such place as may be fixed
by the Board of Directors, 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. (Del.
Code Ann., tit. 8, ss. 122(8))
ARTICLE II
CORPORATE SEAL
Section 3. CORPORATE SEAL. The corporate seal shall consist of a die
bearing the name of the corporation and the inscription, "Corporate
Seal-Delaware." Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise. (Del. Code Ann., tit. 8, ss.
122(3))
ARTICLE III
STOCKHOLDERS' MEETINGS
Section 4. 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 principal office of the corporation required
to be maintained pursuant to Section 2 hereof. (Del. Code Ann., tit. 8, ss.
211(a))
Section 5. ANNUAL MEETING.
(a) The annual meeting of the stockholders of the
corporation, 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. Nominations of persons for election to the Board of
Directors of the corporation and the proposal of business to be
considered by the stockholders may be made at an annual meeting of
stockholders: (i) pursuant to the corporation's notice of
meeting of stockholders; (ii) by or at the direction of the Board of
Directors; or (iii) by any stockholder of the corporation who was a
stockholder of record at the time of giving of notice provided for in
the following paragraph, who is entitled to vote at the meeting and
who complied with the notice procedures set forth in Section 5. (Del.
Code Ann., tit. 8, ss. 211(b)).
(b) At an annual meeting of the stockholders, only such
business shall be conducted as shall have been properly brought before
the meeting. For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of
Section 5(a) of these Bylaws, (i) the stockholder must have given
timely notice thereof in writing to the Secretary of the corporation,
(ii) such other business must be a proper matter for stockholder action
under the General Corporation Law of Delaware, (iii) if the
stockholder, or the beneficial owner on whose behalf any such proposal
or nomination is made, has provided the corporation with a Solicitation
Notice (as defined in this Section 5(b)), such stockholder or
beneficial owner must, in the case of a proposal, have delivered a
proxy statement and form of proxy to holders of at least the percentage
of the corporation's voting shares required under applicable law to
carry any such proposal, or, in the case of a nomination or
nominations, have delivered a proxy statement and form of proxy to
holders of a percentage of the corporation's voting shares reasonably
believed by such stockholder or beneficial owner to be sufficient to
elect the nominee or nominees proposed to be nominated by such
stockholder, and must, in either case, have included in such materials
the Solicitation Notice, and (iv) if no Solicitation Notice relating
thereto has been timely provided pursuant to this section, the
stockholder or beneficial owner proposing such business or nomination
must not have solicited a number of proxies sufficient to have required
the delivery of such a Solicitation Notice under this Section 5. To be
timely, a stockholder's notice shall be delivered to the Secretary at
the principal executive offices of the Corporation not later than the
close of business on the ninetieth (90th) day nor earlier than the
close of business on the one hundred twentieth (120th) day prior to the
first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is
advanced more than thirty (30) days prior to or delayed by more than
thirty (30) days after the anniversary of the preceding year's annual
meeting, notice by the stockholder to be timely must be so delivered
not earlier than the close of business on the one hundred twentieth
(120th) day prior to such annual meeting and not later than the close
of business on the later of the ninetieth (90th) day prior to such
annual meeting or the tenth (10th) day following the day on which
public announcement of the date of such meeting is first made. In no
event shall the public announcement of an adjournment of an annual
meeting commence a new time period for the giving of a stockholder's
notice as described above. Such stockholder's notice shall set forth:
(A) as to each person whom the stockholder proposed to nominate for
election or reelection as a director all information relating to such
person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required,
in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "1934 Act") and Rule 14a-11 thereunder
(including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); (B) as
to any other business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be brought
before the meeting, the reasons for
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conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on
whose behalf the proposal is made; and (C) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the corporation's books, and of such
beneficial owner, (ii) the class and number of shares of the
corporation which are owned beneficially and of record by such
stockholder and such beneficial owner, and (iii) whether either such
stockholder or beneficial owner intends to deliver a proxy statement
and form of proxy to holders of, in the case of the proposal, at least
the percentage of the corporation's voting shares required under
applicable law to carry the proposal or, in the case of a nomination
or nominations, a sufficient number of holders of the corporation's
voting shares to elect such nominee or nominees (an affirmative
statement of such intent, a "Solicitation Notice").
(c) Notwithstanding anything in the second sentence of
Section 5(b) of these Bylaws to the contrary, in the event that the
number of directors to be elected to the Board of Directors of the
Corporation is increased and there is no public announcement naming all
of the nominees for director or specifying the size of the increased
Board of Directors made by the corporation at least one hundred (100)
days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Section 5 shall also
be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the
Secretary at the principal executive offices of the corporation not
later than the close of business on the tenth (10th) day following the
day on which such public announcement is first made by the corporation.
(d) Only such persons who are nominated in accordance with
the procedures set forth in this Section 5 shall be eligible to serve
as directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in
accordance with the procedures set forth in this Section 5. Except as
otherwise provided by law, the Chairman of the meeting shall have the
power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made, or proposed, as the
case may be, in accordance with the procedures set forth in these
Bylaws and, if any proposed nomination or business is not in compliance
with these Bylaws, to declare that such defective proposal or
nomination shall not be presented for stockholder action at the meeting
and shall be disregarded.
(e) Notwithstanding the foregoing provisions of this
Section 5, in order to include information with respect to a
stockholder proposal in the proxy statement and form of proxy for a
stockholders' meeting, stockholders must provide notice as required by
the regulations promulgated under the 1934 Act. Nothing in these Bylaws
shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the corporation proxy statement pursuant to
Rule l4a-8 under the 1934 Act.
(f) For purposes of this Section 5, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or in a
document publicly filed by the corporation
3
with the Securities and Exchange Commission pursuant to Section 13, 14
or 15(d) of the 1934 Act.
Section 6. SPECIAL MEETINGS.
(a) Special meetings of the stockholders of the
corporation may be called, for any purpose or purposes, by (i) the
Chairman of the Board of Directors, (ii) the Chief Executive Officer,
(iii) 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 of Directors for
adoption) or (iv) by the holders of shares entitled to cast not less
than ten percent (10%) of the votes at the meeting, and shall be held
at such place, on such date, and at such time as the Board of Directors
shall fix.
(b) If a special meeting is properly called by any person
or persons other than the Board of Directors, the request shall be in
writing, specifying the general nature of the business proposed to be
transacted, and shall be delivered personally or sent by registered
mail or by telegraphic or other facsimile transmission to the Chairman
of the Board of Directors, the Chief Executive Officer, or the
Secretary of the corporation. No business may be transacted at such
special meeting otherwise than specified in such notice. The Board of
Directors shall determine the time and place of such special meeting,
which shall be held not less than thirty-five (35) nor more than one
hundred twenty (120) days after the date of the receipt of the request.
Upon determination of the time and place of the meeting, the officer
receiving the request shall cause notice to be given to the
stockholders entitled to vote, in accordance with the provisions of
Section 7 of these Bylaws. If the notice is not given within sixty (60)
days after the receipt of the request, the person or persons properly
requesting the meeting may set the time and place of the meeting and
give the notice. Nothing contained in this paragraph (b) shall be
construed as limiting, fixing, or affecting the time when a meeting of
stockholders called by action of the Board of Directors may be held.
Section 7. NOTICE OF MEETINGS. Except as otherwise provided by law or
the Certificate of Incorporation, written notice of each meeting of stockholders
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder entitled to vote at such meeting, such
notice to specify the place, date and hour and purpose or purposes of the
meeting. Notice of the time, place and purpose of any meeting of stockholders
may be waived in writing, signed by the person entitled to notice thereof,
either before or after such meeting, and will be waived by any stockholder by
his attendance thereat in person or by proxy, except when the stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. 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. (Del. Code Ann., tit. 8, ss.ss. 222, 229)
Section 8. QUORUM. At all meetings of stockholders, except where
otherwise provided by statute or by the Certificate of Incorporation, or by
these Bylaws, the presence, in person or by proxy duly authorized, of the
holders of a majority of the outstanding shares of
4
stock entitled to vote shall constitute a quorum for the transaction of
business. In the absence of a quorum, any meeting of stockholders may be
adjourned, from time to time, either by the chairman of the meeting or by vote
of the holders of a majority of the shares represented thereat, but no other
business shall be transacted at such 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. Except as otherwise provided by law or
by applicable stock exchange or Nasdaq rules, or by the Certificate of
Incorporation or these Bylaws, in all matters other than the election of
directors, the affirmative vote of a majority of shares present in person or
represented by proxy duly authorized at the meeting and entitled to vote on the
subject matter shall be the act of the stockholders. Except as otherwise
provided by statute, the Certificate of Incorporation or these Bylaws, directors
shall be elected by a plurality of the votes of the shares present in person or
represented by proxy duly authorized at the meeting and entitled to vote on the
election of directors. Where a separate vote by a class or classes or series is
required, except where otherwise provided by the statute or by the Certificate
of Incorporation or these Bylaws, a majority of the outstanding shares of such
class or classes or series, present in person or represented by proxy duly
authorized, shall constitute a quorum entitled to take action with respect to
that vote on that matter. Except where otherwise provided by statute or by the
Certificate of Incorporation or these Bylaws, the affirmative vote of the
majority (plurality, in the case of the election of directors) of the
outstanding shares of such class or classes or series present in person or
represented by proxy duly authorized at the meeting shall be the act of such
class or classes or series. (Del. Code Am., tit. 8, ss. 216)
Section 9. ADJOURNMENT AND NOTICE OF ADJOURNED MEETINGS. Any meeting
of stockholders, whether annual or special, may be adjourned from time to time
either by the chairman of the meeting or by the vote of a majority of the shares
casting votes. 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. At the adjourned
meeting, the corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
(30) days or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting. (Del. Code Ann., tit. 8,
ss. 222 (c))
Section 10. VOTING RIGHTS. For the purpose of determining those
stockholders entitled to vote at any meeting of the stockholders, except as
otherwise provided by law, only persons in whose names shares stand on the stock
records of the corporation on the record date, as provided in Section 12 of
these Bylaws, shall be entitled to vote at any meeting of stockholders. 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 proxy granted in accordance
with Delaware law. An agent so appointed need not be a stockholder. No proxy
shall be voted after three (3) years from its date of creation unless the proxy
provides for a longer period. (Del. Code Ann., tit. 8, ss.ss. 211(e), 212(b))
Section 11. JOINT OWNERS OF STOCK. If shares or other securities
having voting power stand of record in the names of two (2) or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in common,
tenants by the entirety, or otherwise, or if two (2)
5
or more persons have the same fiduciary relationship respecting the same shares,
unless the Secretary is given written notice to the contrary and is furnished
with a copy of the instrument or order appointing them or creating the
relationship wherein it is so provided, their acts with respect to voting shall
have the following effect: (a) if only one (1) votes, his act binds all; (b) if
more than one (1) votes, the act of the majority so voting binds all; (c) if
more than one (1) votes, but the vote is evenly split on any particular matter,
each faction may vote the securities in question proportionally, or may apply to
the Delaware Court of Chancery for relief as provided in the Delaware General
Corporation Law, Section 217(b). If the instrument filed with the Secretary
shows that any such tenancy is held in unequal interests, a majority or
even-split for the purpose of subsection (c) shall be a majority or even-split
in interest. (Del. Code Ann., tit. 8, ss. 217(b))
Section 12. LIST OF STOCKHOLDERS. The Secretary shall prepare and
make, at least ten (10) 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 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, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. 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. (Del. Code Ann., tit. 8,
ss. 219(a))
Section 13. ACTION WITHOUT MEETING.
(a) Unless otherwise provided in the Certificate of
Incorporation, any action required by statute to be taken at any annual
or special meeting of the stockholders, or any action which may be
taken at any annual or special meeting of the stockholders, may be
taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed
by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were
present and voted.
(b) Every written consent shall bear the date of signature
of each stockholder who signs the consent, and no written consent shall
be effective to take the corporate action referred to therein unless,
within sixty (60) days of the earliest dated consent delivered to the
corporation in the manner herein required, written consents signed by a
sufficient number of stockholders to take action are delivered to the
corporation by delivery to its registered office in the State of
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. (Del. Code Ann., tit. 8, ss. 228)
(c) 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
6
consented in writing and who, if the action had been taken at a
meeting, would have been entitled to notice of the meeting if the
record date for such meeting had been the date that written consents
signed by a sufficient number of stockholders to take action were
delivered to the corporation as provided in Section 228(c) of the
Delaware General Corporation Law. If the action which is consented to
is such as would have required the filing of a certificate under any
section of the Delaware General Corporation Law if such action had
been voted on by stockholders at a meeting thereof, then the
certificate filed under such section shall state, in lieu of any
statement required by such section concerning any vote of
stockholders, that written consent has been given in accordance with
Section 228 of the Delaware General Corporation Law.
Section 14. ORGANIZATION.
(a) At every meeting of stockholders, the Chairman of the
Board of Directors, or, if a Chairman has not been appointed or is
absent, the President, or, if the President is absent, a chairman of
the meeting chosen by a majority in interest of the stockholders
entitled to vote, present in person or by proxy, shall act as chairman.
The Secretary, or, in his absence, an Assistant Secretary directed to
do so by the President, shall act as secretary of the meeting.
(b) The Board of Directors of the corporation shall be
entitled to make such rules or regulations for the conduct of meetings
of stockholders as it shall deem necessary, appropriate or convenient.
Subject to such rules and regulations of the Board of Directors, if
any, the chairman of the meeting shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such
acts as, in the judgment of such chairman, are necessary, appropriate
or convenient for the proper conduct of the meeting, including, without
limitation, establishing an agenda or order of business for the
meeting, rules and procedures for maintaining order at the meeting and
the safety of those present, limitations on participation in such
meeting to stockholders of record of the corporation and their duly
authorized and constituted proxies and such other persons as the
chairman shall permit, restrictions on entry to the meeting after the
time fixed for the commencement thereof, limitations on the time
allotted to questions or comments by participants and regulation of the
opening and closing of the polls for balloting on matters which are to
be voted on by ballot. Unless and to the extent determined by the Board
of Directors or the chairman of the meeting, meetings of stockholders
shall not be required to be held in accordance with rules of
parliamentary procedure.
ARTICLE IV
DIRECTORS
Section 15. NUMBER AND TERM OF OFFICE. The authorized number of
directors of the corporation shall be fixed by the Board of Directors from time
to time. Directors need not be stockholders unless so required by the
Certificate of Incorporation. If for any cause, the directors shall not have
been elected at an annual meeting, they may be elected as soon thereafter as
convenient. (Del. Code Ann., tit, 8, ss.ss. 141(b), 211(b), (c))
7
Section 16. POWERS. The powers of the corporation shall be exercised,
its business conducted and its property controlled by the Board of Directors,
except as may be otherwise provided by statute or by the Certificate of
Incorporation. (Del. Code Ann., tit. 8, ss. 141(a))
Section 17. TERM OF DIRECTORS. Subject to the rights of the holders of
any series of Preferred Stock to elect additional directors under specified
circumstances, directors shall be elected at each annual meeting of stockholders
for a term of one year. Each director shall serve until his successor is duly
elected and qualified or until his death, resignation or removal. No decrease in
the number of directors constituting the Board of Directors shall shorten the
term of any incumbent director.
Section 18. VACANCIES.
(a) Unless otherwise provided in the Certificate of
Incorporation, any vacancies on the Board of Directors resulting from
death, resignation, disqualification, removal or other causes and any
newly created directorships resulting from any increase in the number
of directors shall, unless the Board of Directors determines by
resolution that any such vacancies or newly created directorships shall
be filled by stockholders, be filled only by the affirmative vote of a
majority of the directors then in office, even though less than a
quorum of the Board of Directors. Any director elected in accordance
with the preceding sentence shall hold office for the remainder of the
full term of the director for which the vacancy was created or occurred
and until such director's successor shall have been elected and
qualified. A vacancy in the Board of Directors shall be deemed to exist
under this Bylaw in the case of the death, removal or resignation of
any director. (Del. Code Ann., tit. 8, ss. 223(a), (b)).
(b) If at the time of filling any vacancy or any newly
created directorship, the directors then in office shall constitute
less than a majority of the whole board (as constituted immediately
prior to any such increase), the Delaware Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten
percent (10%) of the total number of the shares at the time outstanding
having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then
in offices as aforesaid, which election shall be governed by Section
211 of the Delaware General Corporation Law (Del. Code Ann. tit. 8, ss.
223(c)).
Section 19. RESIGNATION. 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 of Directors, effective at a
future date, a majority of the directors then in office, including those who
have so resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, 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. (Del. Code Ann., tit. 8,
ss.ss. 141(b), 223(d))
8
Section 20. REMOVAL. Subject to any limitations imposed by applicable
law, the Board of Directors or any director may be removed from office at any
time (1) with cause by the affirmative vote of the holders of a majority of the
voting power of all then-outstanding shares of voting stock of the corporation
entitled to vote at an election of directors or (ii) without cause by the
affirmative vote of the holders of a majority of the voting power of all
then-outstanding shares of voting stock of the corporation, entitled to vote at
an election of directors.
Section 21. MEETINGS.
(a) ANNUAL MEETINGS. The annual meeting of the Board of
Directors shall be held immediately before or after the annual meeting
of stockholders and at the place where such meeting is held. 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) REGULAR MEETINGS. Unless otherwise restricted by the
Certificate of Incorporation, regular meetings of the Board of
Directors may be held at any time or date and at any place within or
without the State of Delaware which has been designated by the Board of
Directors and publicized among all directors. No formal notice shall be
required for a regular meeting of the Board of Directors. (Del. Code
Ann., tit. 8, ss. 141(g))
(c) SPECIAL MEETINGS. Unless otherwise restricted by the
Certificate of Incorporation, 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, the President
or any two of the directors. (Del. Code Ann., tit. 8, ss. 141(g))
(d) TELEPHONE MEETINGS. Any member of the Board of
Directors, or of any committee thereof, may participate in a meeting 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 in a meeting by such means shall constitute
presence in person at such meeting. (Del. Code Ann., tit. 8, ss.
141(i))
(e) NOTICE OF MEETINGS. Notice of the time and place of
all meetings of the Board of Directors shall be orally or in writing,
by telephone, including a voice messaging system or other system or
technology designed to record and communicate messages, facsimile,
telegraph or telex, or by electronic mail or other electronic means,
during normal business hours, at least twenty-four (24) hours before
the date and time of the meeting, or sent in writing to each director
by first class mail, postage prepaid, at least three (3) days before
the date 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, except when the director attends the
meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not
lawfully called or convened. (Del. Code Ann., tit. 8, ss. 229)
(f) WAIVER OF NOTICE. The transaction of all business at
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
9
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.
All such waivers shall be filed with the corporate records or made a
part of the minutes of the meeting. (Del. Code Ann., tit. 8, ss. 229)
Section 22. QUORUM AND VOTING.
(a) Unless the Certificate of Incorporation requires a
greater number and except with respect to indemnification questions
arising under Section 43 hereof, for which a quorum shall be one-third
of the exact number of directors fixed from time to time, a quorum of
the Board of Directors shall consist of a majority of the exact number
of directors fixed from time to time by the Board of Directors in
accordance with the Certificate of Incorporation; 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. (Del. Code Ann., tit.
8, ss. 141(b))
(b) At each meeting of the Board of Directors at which a
quorum is present, all questions and business shall be determined by
the affirmative vote of a majority of the directors present, unless a
different vote be required by law, the Certificate of Incorporation or
these Bylaws. (Del. Code Ann., tit. 8, ss. 141(b))
Section 23. 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 of Directors or
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 of Directors or
committee. (Del. Code Ann., tit. 8, ss. 141(f))
Section 24. FEES AND COMPENSATION. Directors shall be entitled to such
compensation for their services as may be approved by the Board of Directors,
including, if so approved, by resolution of the Board of Directors, a fixed sum
and expenses of attendance, if any, for attendance at each regular or special
meeting of the Board of Directors and at any meeting of a committee of the Board
of Directors. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity as an officer,
agent, employee, or otherwise and receiving compensation therefor. (Del. Code
Ann., tit. 8, ss. 141(h))
Section 25. COMMITTEES.
(a) EXECUTIVE COMMITTEE. The Board of Directors may
appoint an Executive Committee to consist of one (1) or more members of
the Board of Directors. The Executive Committee, to the extent
permitted by law and provided in the resolution of the Board of
Directors shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of
the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall
have the power or authority in reference to (i) approving or adopting,
or recommending to the stockholders, any action or matter expressly
required
10
by the Delaware General Corporation Law to be submitted to
stockholders for approval, or (ii) adopting, amending or repealing any
bylaw of the corporation. (Del. Code Ann., tit. 8, ss. 141(c))
(b) OTHER COMMITTEES. The Board of Directors may, from
time to time, appoint such other committees as may be permitted by law.
Such other committees appointed by the Board of Directors shall consist
of one (1) or more members of the Board of Directors and shall have
such powers and perform such duties as may be prescribed by the
resolution or resolutions creating such committees, but in no event
shall any such committee have the powers denied to the Executive
Committee in these Bylaws. (Del. Code Ann., tit. 8, ss. 141(c))
(c) TERM. Each member of a committee of the Board of
Directors shall serve a term on the committee coexistent with such
member's term on the Board of Directors. The Board of Directors,
subject to any requirements of any outstanding series of Preferred
Stock, the provisions of subsections (a) or (b) of this Bylaw may at
any time increase or decrease the number of members of a committee or
terminate the existence of a committee. The membership of a committee
member shall terminate on the date of his death or voluntary
resignation from the committee or from the Board of Directors. The
Board of Directors may at any time for any reason remove any individual
committee member and the Board of Directors 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. (Del. Code Ann., tit. 8, ss. 141(c))
(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 25 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 any place which has been determined from time to time by such
committee, 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 before or after the meeting and will be waived by any
director by attendance thereat, except when the director attends such
special meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. 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
11
meeting at which a quorum is present shall be the act of such
committee. (Del. Code Ann., tit. 8, ss.ss. 141(c), 229)
Section 26. ORGANIZATION. At every meeting of the directors, the
Chairman of the Board of Directors, or, if a Chairman has not been appointed or
is absent, the President, or if the President is absent, the most senior Vice
President, (if a director) or, in the absence of any such person, a chairman of
the meeting chosen by a majority of the directors present, shall preside over
the meeting. The Secretary, or in his absence, any Assistant Secretary directed
to do so by the President, shall act as secretary of the meeting.
ARTICLE V
OFFICERS
Section 27. OFFICERS DESIGNATED. The officers of the corporation shall
include, if and when designated by the Board of Directors, the Chairman of the
Board of Directors, the Chief Executive Officer, the President, one or more Vice
Presidents, the Secretary, the Chief Financial Officer, the Treasurer and the
Controller, all of whom shall be elected at the annual organizational meeting of
the Board of Directors. The Board of Directors may also appoint one or more
Assistant Secretaries, Assistant Treasurers, Assistant Controllers and such
other officers and agents with such powers and duties as it shall deem
necessary. The Board of Directors may assign such additional titles to one or
more of the officers as it 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. (Del. Code Ann., tit. 8, ss.ss. 122(5), 142(a), (b))
Section 28. 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. (Del. Code Ann., tit. 8, ss. 141(b), (e))
(b) DUTIES OF CHAIRMAN OF THE BOARD OF DIRECTORS. The
Chairman of the Board of Directors, when present, shall preside at all
meetings of the stockholders and the Board of Directors. The Chairman
of the Board of Directors shall perform other duties commonly incident
to his office and shall also perform such other duties and have such
other powers as the Board of Directors shall designate from time to
time. If there is no President, then the Chairman of the Board of
Directors shall also serve as the Chief Executive Officer of the
corporation and shall have the powers and duties prescribed in
paragraph (c) of this Section 28. (Del. Code Ann., tit. 8, ss. 142(a))
(c) DUTIES OF PRESIDENT. The President shall preside at
all meetings of the stockholders and at all meetings of the Board of
Directors, unless the Chairman of the
12
Board of Directors has been appointed and is present. Unless some
other officer has been elected Chief Executive Officer of the
corporation, the President shall be the chief executive officer of the
corporation and shall, subject to the control of the Board of
Directors, have general supervision, direction and control of the
business and officers of the corporation. The President shall perform
other duties commonly incident to his office and shall also perform
such other duties and have such other powers as the Board of Directors
shall designate from time to time. (Del. Code Ann., tit. 8, ss.
142(a))
(d) DUTIES OF VICE PRESIDENTS. The Vice Presidents may
assume and perform the duties of the President in the absence or
disability of the President or whenever the office of President is
vacant. The Vice Presidents shall perform other duties commonly
incident to their office and shall also perform such other duties and
have such other powers as the Board of Directors or the President shall
designate from time to time. (Del. Code Ann., tit. 8, ss. 142(a))
(e) DUTIES OF SECRETARY. The Secretary shall attend all
meetings of the stockholders and of the Board of Directors 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 stockholders and of all meetings of the
Board of Directors and any committee thereof requiring notice. The
Secretary shall perform all other duties given him in these Bylaws and
other duties commonly incident to his office and shall also 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 other duties commonly incident to his office
and shall also perform such other duties and have such other powers as
the Board of Directors or the President shall designate from time to
time. (Del. Code Ann., tit. 8, ss. 142(a))
(f) DUTIES OF CHIEF FINANCIAL OFFICER. The Chief Financial
Officer 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 Chief
Financial Officer, subject to the order of the Board of Directors,
shall have the custody of all funds and securities of the corporation.
The Chief Financial Officer shall perform other duties commonly
incident to his office and shall also 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 the Treasurer or
any Assistant Treasurer, or the Controller or any Assistant Controller
to assume and perform the duties of the Chief Financial Officer in the
absence or disability of the Chief Financial Officer, and each
Treasurer and Assistant Treasurer and each Controller and Assistant
Controller shall perform other duties commonly incident to his office
and shall also perform such other duties and have such other powers as
the Board of Directors or the President shall designate from time to
time. (Del. Code Ann., tit. 8, ss. 142(a))
13
Section 29. DELEGATION OF AUTHORITY. The Board of Directors may from
time to time delegate the powers or duties of any officer to any other officer
or agent, notwithstanding any provision hereof.
Section 30. RESIGNATIONS. Any officer may resign at any time by giving
written notice to the Board of Directors or to the President or to the
Secretary. Any such resignation shall be effective when received by the person
or persons to whom such notice is given, unless a later time is specified
therein, in which event the resignation shall become effective at such later
time. Unless otherwise specified in such notice, the acceptance of any such
resignation shall not be necessary to make it effective. Any resignation shall
be without prejudice to the rights, if any, of the corporation under any
contract with the resigning officer. (Del. Code Ann., tit. 8, ss. 142(b))
Section 31. REMOVAL. Any officer may be removed from office at any
time, either with or without cause, by the affirmative vote of a majority of the
directors in office at the time, or by the unanimous written consent of the
directors in office at the time, or by any committee or superior officers upon
whom such power of removal may have been conferred by the Board of Directors.
ARTICLE VI
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING
OF SECURITIES OWNED BY THE CORPORATION
Section 32. EXECUTION OF CORPORATE INSTRUMENTS. 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 on behalf of the corporation
any corporate instrument or document, or to sign on behalf of the corporation
the corporate name without limitation, or to enter into contracts on behalf of
the corporation, except where otherwise provided by law or these Bylaws, and
such execution or signature shall be binding upon the corporation. (Del. Code
Ann., tit. 8, ss.ss. 103(a), 142(a), 158)
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.
Unless authorized or ratified by the Board of Directors or within the
agency power of an officer, no officer, agent or employee shall have any power
or authority to bind the corporation by any contract or engagement or to pledge
its credit or to render it liable for any purpose or for any amount. (Del. Code
Ann., tit. 8, ss.ss. 103(a), 142(a), 158).
Section 33. VOTING OF SECURITIES OWNED BY THE 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 of Directors, the Chief Executive Officer, the
President, or any Vice President. (Del. Code Ann., tit. 8, ss. 123)
14
ARTICLE VII
SHARES OF STOCK
Section 34. 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 of Directors, or 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
facsimiles. 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. Each certificate shall state
upon the face or back thereof, in full or in summary, all of the powers,
designations, preferences, and rights, and the limitations or restrictions of
the shares authorized to be issued or shall, except as otherwise required by
law, set forth on the face or back 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. Within a reasonable time after
the issuance or transfer of uncertificated stock, the corporation shall send to
the registered owner thereof a written notice containing the information
required to be set forth or stated on certificates pursuant to this section or
otherwise required by law or with respect to this section 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. Except as
otherwise expressly provided by law, the rights and obligations of the holders
of certificates representing stock of the same class and series shall be
identical. (Del. Code Ann., tit. 8, ss. 158)
Section 35. LOST CERTIFICATES. A new certificate or certificates shall
be issued in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen, or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen, or destroyed. The corporation may require, as a condition
precedent to the issuance of a new certificate or certificates, the owner of
such lost, stolen, or destroyed certificate or certificates, or his legal
representative, to agree to indemnify the corporation in such manner as it shall
require 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, stolen,
or destroyed. (Del. Code Ann., tit. 8, ss. 167)
Section 36. TRANSFERS.
(a) 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
properly endorsed certificate or certificates for a like number of
shares. (Del. Code Ann., tit. 8, ss. 201, tit. 6, ss. 8-401 (1))
(b) The corporation shall have power to enter into and
perform any agreement with any number of stockholders of any one or
more classes of stock of the corporation to restrict the transfer of
shares of stock of the corporation of any one or more classes owned by
such stockholders in any manner not prohibited by the Delaware General
Corporation Law. (Del. Code Ann., tit. 8, ss. 160 (a))
Section 37. 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, in advance, 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, subject to applicable
law, not be more than sixty (60) nor less than ten (10) 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 day on which the meeting is held. 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.
(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 (10) days after the date upon which the resolution
fixing the record date is adopted by the Board of Directors. Any
stockholder of record seeking to have the stockholders authorize or
take corporate action by written consent shall, by written notice to
the Secretary, request the Board of Directors to fix a record date. The
Board of Directors shall promptly, but in all events within ten (10)
days after the date on which such a request is received, adopt a
resolution fixing the record date. If no record date has been fixed by
the Board of Directors within ten (10) days of the date on which such a
request is received, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting,
when no prior action by the Board of Directors is required by
applicable law, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is
delivered to the corporation by delivery to its registered office in
the State of 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
the 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.
16
(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, in advance, 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 (60)
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. (Del. Code Ann., tit. 8, ss. 213)
Section 38. 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.
(Del. Code Ann., tit. 8, ss.ss. 213(a), 219)
ARTICLE VIII
OTHER SECURITIES OF THE CORPORATION
Section 39. EXECUTION OF OTHER SECURITIES. All bonds, debentures and
other corporate securities of the corporation, other than stock certificates
(covered in Section 34), may be signed by the Chairman of the Board of
Directors, 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 Chief Financial Officer or
Treasurer or an Assistant Treasurer; provided, however, that where any such
bond, debenture or other corporate security shall be authenticated by the manual
signature, or where permissible facsimile signature, of a trustee under an
indenture pursuant to which such bond, debenture or other corporate security
shall be issued, the signatures 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 on any such interest coupon, shall have ceased to be such officer
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.
17
ARTICLE IX
DIVIDENDS
Section 40. DECLARATION OF DIVIDENDS. Dividends upon the capital stock
of the corporation, subject to the provisions of the Certificate of
Incorporation and applicable law, if any, may be declared by the Board of
Directors pursuant to law at any regular or special meeting. Dividends may be
paid in cash, in property, or in shares of the capital stock, subject to the
provisions of the Certificate of Incorporation and applicable law. (Del. Code
Ann., tit. 8, ss.ss. 170, 173)
Section 41. DIVIDEND RESERVE. Before payment of any dividend, there
may be set aside out of any funds of the corporation available for dividends
such sum or sums as the Board of Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the Board of Directors shall think
conducive to the interests of the corporation, and the Board of Directors may
modify or abolish any such reserve in the manner in which it was created. (Del.
Code Ann., tit. 8, ss. 171)
ARTICLE X
FISCAL YEAR
Section 42. FISCAL YEAR. The fiscal year of the corporation shall be
fixed by resolution of the Board of Directors.
ARTICLE XI
INDEMNIFICATION
Section 43. INDEMNIFICATION OF DIRECTORS, EXECUTIVE OFFICERS, OTHER
OFFICERS, EMPLOYEES AND OTHER AGENTS.
(a) DIRECTORS AND EXECUTIVE OFFICERS. The corporation
shall indemnify its directors and executive officers (for the purposes
of this Article XI, "executive officers" shall have the meaning defined
in Rule 3b-7 promulgated under the 1934 Act) to the fullest extent not
prohibited by the Delaware General Corporation Law or any other
applicable law; provided, however, that the corporation may modify the
extent of such indemnification by individual contracts with its
directors and executive officers; and, provided, further, that the
corporation shall not be required to indemnify any director or
executive officer in connection with any proceeding (or part thereof)
initiated by such person unless (i) such indemnification is expressly
required to be made by law, (ii) the proceeding was authorized by the
Board of Directors of the corporation, (iii) 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 any other applicable law or (iv) such indemnification is
required to be made under subsection (d).
18
(b) OTHER OFFICERS, EMPLOYEES AND OTHER AGENTS. The
corporation shall have power to indemnify other officers, employees and
other agents as set forth in the Delaware General Corporation Law or
any other applicable law. The Board of Directors shall have the power
to delegate the determination of whether indemnification shall be given
to any such person except executive officers to such officers or other
persons as the Board of Directors shall determine.
(c) EXPENSES. The corporation shall advance to any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director or executive officer, of the corporation,
or is or was serving at the request of the corporation as a director or
executive officer of another corporation, partnership, joint venture,
trust or other enterprise, prior to the final disposition of the
proceeding, promptly following request therefor, all expenses incurred
by any director or executive officer in connection with such proceeding
upon receipt of an undertaking by or on behalf of such person to repay
said amounts if it should be determined ultimately that such person is
not entitled to be indemnified under this Bylaw or otherwise.
Notwithstanding the foregoing, unless otherwise determined pursuant to paragraph
(e) of this Bylaw, no advance shall be made by the corporation to an executive
officer of the corporation (except by reason of the fact that such executive
officer is or was a director of the corporation, in which event this paragraph
shall not apply) in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, if a determination is reasonably and promptly
made (i) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to the proceeding, or (ii) if such quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, that the facts known
to the decision-making party at the time such determination is made demonstrate
clearly and convincingly that such person acted in bad faith or in a manner that
such person did not believe to be in or not opposed to the best interests of the
corporation.
(d) ENFORCEMENT. Without the necessity of entering into an
express contract, all rights to indemnification and advances to
directors and executive officers under this Bylaw shall be deemed to be
contractual rights and be effective to the same extent and as if
provided for in a contract between the corporation and the director or
executive officer. Any right to indemnification or advances granted by
this Bylaw to a director or executive officer shall be enforceable by
or on behalf of the person holding such right in any court of competent
jurisdiction if (i) the claim for indemnification or advances is
denied, in whole or in part, or (ii) no disposition of such claim is
made within ninety (90) days of request therefor. The claimant in such
enforcement action, if successful in whole or in part, shall be
entitled to be paid also the expense of prosecuting his claim. In
connection with any claim for indemnification, the corporation shall be
entitled to raise as a defense to any such action that the claimant has
not met the standards of conduct that make it permissible under the
Delaware General Corporation Law or any other applicable law for the
corporation to indemnify the claimant for the amount claimed. In
connection with any claim by an executive officer of the corporation
(except in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such
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executive officer is or was a director of the corporation) for
advances, the corporation shall be entitled to raise a defense as to
any such action clear and convincing evidence that such person acted in
bad faith or in a manner that such person did not believe to be in or
not opposed to the best interests of the corporation, or with respect
to any criminal action or proceeding that such person acted without
reasonable cause to believe that his conduct was lawful. 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 has met the applicable standard of conduct set forth in the Delaware
General Corporation Law or any other applicable 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. In any suit brought by a director or executive
officer to enforce a right to indemnification or to an advancement of
expenses hereunder, the burden of proving that the director or
executive officer is not entitled to be indemnified, or to such
advancement of expenses, under this Article XI or otherwise shall be on
the corporation.
(e) NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any
person by this Bylaw shall not be exclusive of any other right which
such person may have or hereafter acquire under any applicable statute,
provision of the Certificate of Incorporation, Bylaws, agreement, vote
of stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity
while holding office. The corporation is specifically authorized to
enter into individual contracts with any or all of its directors,
officers, employees or agents respecting indemnification and advances,
to the fullest extent not prohibited by the Delaware General
Corporation Law or any other applicable law.
(f) SURVIVAL OF RIGHTS. The rights conferred on any person
by this Bylaw shall continue as to a person who has ceased to be a
director, officer, employee or other agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
(g) INSURANCE. To the fullest extent permitted by the
Delaware General Corporation Law, or any other applicable law, the
corporation, upon approval by the Board of Directors, may purchase
insurance on behalf of any person required or permitted to be
indemnified pursuant to this Bylaw.
(h) AMENDMENTS. Any repeal or modification of this Bylaw
shall only be prospective and shall not affect the rights under this
Bylaw in effect at the time of the alleged occurrence of any action or
omission to act that is the cause of any proceeding against any agent
of the corporation.
(i) SAVING CLAUSE. If this Bylaw or any portion hereof
shall be invalidated on any ground by any court of competent
jurisdiction, then the corporation shall nevertheless indemnify each
director and executive officer to the full extent not prohibited by any
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applicable portion of this Bylaw that shall not have been invalidated,
or by any other applicable law. If this Section 43 shall be invalid due
to the application of the indemnification provisions of another
jurisdiction, then the corporation shall indemnify each director and
executive officer to the full extent under applicable law.
(j) CERTAIN DEFINITIONS. For the purposes of this Bylaw,
the following definitions shall apply:
(1) The term "proceeding" shall be broadly construed and
shall include, without limitation, the investigation,
preparation, prosecution, defense, settlement, arbitration and
appeal of, and the giving of testimony in, any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative.
(2) The term "expenses" shall be broadly construed and
shall include, without limitation, court costs, attorneys' fees,
witness fees, fines, amounts paid in settlement or judgment and
any other costs and expenses of any nature or kind incurred in
connection with any proceeding.
(3) The term the "corporation" shall include, in
addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority
to indemnify its directors, officers, and employees or
agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation,
or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise, shall stand in the same position under the
provisions of this Bylaw with respect to the resulting or
surviving corporation as he would have with respect to such
constituent corporation if its separate existence had
continued.
(4) References to a "director," "executive officer,"
"officer," "employee," or "agent" of the corporation shall
include, without limitation, situations where such person is
serving at the request of the corporation as, respectively, a
director, executive officer, officer, employee, trustee or agent
of another corporation, partnership, joint venture, trust or
other enterprise.
(5) References to "other enterprises" shall include
employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the
corporation" shall include any service as a director, officer,
employee or agent of the corporation which imposes duties on, or
involves services by, such director, officer, employee, or agent
with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a
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manner "not opposed to the best interests of the
corporation" as referred to in this Bylaw.
ARTICLE XII
NOTICES
Section 44. NOTICES.
(a) NOTICE TO STOCKHOLDERS. Whenever, under any provisions
of these Bylaws, notice is required to be given to any stockholder, it
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. (Del. Code Ann., tit. 8, ss. 222)
(b) NOTICE TO DIRECTORS. Any notice required to be given
to any director may be given by the method stated in subsection (a), or
by overnight delivery service, facsimile, telex or telegram, except
that such notice other than one which is delivered personally shall be
sent to such address as such director shall have filed in writing with
the Secretary, or, in the absence of such filing, to the last known
post office address of such director.
(c) AFFIDAVIT OF MAILING. 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, or director or directors, to whom any
such notice or notices was or were given, and the time and method of
giving the same, shall in the absence of fraud, be prima facie evidence
of the facts therein contained. (Del. Code Ann., tit. 8, ss. 222)
(d) TIME NOTICES DEEMED GIVEN. All notices given by mail
or by overnight delivery service, as above provided, shall be deemed to
have been given as at the time of mailing, and all notices given by
facsimile, telex or telegram shall be deemed to have been given as of
the sending time recorded at time of transmission.
(e) METHODS OF NOTICE. It shall not be necessary that the
same method of giving notice 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.
(f) FAILURE TO RECEIVE NOTICE. 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
stockholder or such director to receive such notice.
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(g) NOTICE TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL.
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.
(h) NOTICE TO PERSON WITH UNDELIVERABLE ADDRESS. Whenever
notice is required to be given, under any provision of law or the
Certificate of Incorporation or Bylaws of the corporation, to any
stockholder to whom (i) notice of two consecutive annual meetings, and
all notices of meetings or of the taking of action by written consent
without a meeting to such person during the period between such two
consecutive annual meetings, or (ii) all, and at least two, payments
(if sent by first class mail) of dividends or interest on securities
during a twelve-month period, have been mailed addressed to such person
at his address as shown on the records of the corporation and have been
returned undeliverable, the giving of such notice to such person shall
not be required. Any action or meeting which shall be taken or held
without notice to such person shall have the same force and effect as
if such notice had been duly given. If any such person shall deliver to
the corporation a written notice setting forth his then current
address, the requirement that notice be given to such person shall be
reinstated. 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 need not state
that notice was not given to persons to whom notice was not required to
be given pursuant to this paragraph, (Del. Code Ann, tit. 8, ss. 230).
ARTICLE XIII
AMENDMENTS
Section 45. AMENDMENTS. Subject to paragraph (h) of Section 43 of the
Bylaws, these Bylaws may be amended or repealed and new Bylaws adopted by the
stockholders entitled to vote. The Board of Directors shall also have the power,
if such power is conferred upon the Board of Directors by the Certificate of
Incorporation, to adopt, amend, or repeal Bylaws (including, without limitation,
the amendment of any Bylaw setting forth the number of Directors who shall
constitute the whole Board of Directors), (Del Code Ann., tit. 8, ss.ss. 109(a),
122(6)).
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ARTICLE XIV
RIGHT OF FIRST REFUSAL
Section 46. RIGHT OF FIRST REFUSAL. No stockholder shall sell, assign,
pledge, or in any manner transfer any of the shares of common stock of the
corporation or any right or interest therein, whether voluntarily or by
operation of law, or by gift or otherwise, except by a transfer which meets the
requirements hereinafter set forth in this bylaw:
(a) If the stockholder desires to sell or otherwise
transfer any of his shares of common stock, then the stockholder shall
first give written notice thereof to the corporation. The notice shall
name the proposed transferee and state the number of shares to be
transferred, the proposed consideration, and all other terms and
conditions of the proposed transfer.
(b) For thirty (30) days following receipt of such notice,
the corporation shall have the option to purchase all (but not less
than all) of the shares specified in the notice at the price and upon
the terms set forth in such notice; provided, however, that, with the
consent of the stockholder, the corporation shall have the option to
purchase a lesser portion of the shares specified in said notice at the
price and upon the terms set forth therein. In the event of a gift,
property settlement or other transfer in which the proposed transferee
is not paying the full price for the shares, and that is not otherwise
exempted from the provisions of this Section 46, the price shall be
deemed to be the fair market value of the stock at such time as
determined in good faith by the Board of Directors. In the event the
corporation elects to purchase all of the shares or, with consent of
the stockholder, a lesser portion of the shares, it shall give written
notice to the transferring stockholder of its election and settlement
for said shares shall be made as provided below in paragraph (d).
(c) The corporation may assign its rights hereunder.
(d) In the event the corporation and/or its assignee(s)
elect to acquire any of the shares of the transferring stockholder as
specified in said transferring stockholder's notice, the Secretary of
the corporation shall so notify the transferring stockholder and
settlement thereof shall be made in cash within thirty (30) days after
the Secretary of the corporation receives said transferring
stockholder's notice; provided that if the terms of payment set forth
in said transferring stockholder's notice were other than cash against
delivery, the corporation and/or its assignee(s) shall pay for said
shares on the same terms and conditions set forth in said transferring
stockholder's notice.
(e) In the event the corporation and/or its assignees(s)
do not elect to acquire all of the shares specified in the transferring
stockholder's notice, said transferring stockholder may, within the
sixty-day period following the expiration of the option rights granted
to the corporation and/or its assignees(s) herein, transfer the shares
specified in said transferring stockholder's notice which were not
acquired by the corporation and/or its assignees(s) as specified in
said transferring stockholder's notice. All shares so sold by
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said transferring stockholder shall continue to be subject to the
provisions of this bylaw in the same manner as before said transfer.
(f) Anything to the contrary contained herein
notwithstanding, the following transactions shall be exempt from the
provisions of this bylaw:
(1) A stockholder's transfer of any or all shares held
either during such stockholder's lifetime or on death by will or
intestacy to such stockholder's immediate family or to any
custodian or trustee for the account of such stockholder or such
stockholder's immediate family or to any limited partnership of
which the stockholder, members of such stockholder's immediate
family or any trust for the account of such stockholder or such
stockholder's immediate family will be the general of limited
partner(s) of such partnership. "Immediate family" as used
herein shall mean spouse, lineal descendant, father, mother,
brother, or sister of the stockholder making such transfer.
(2) A stockholder's bona fide pledge or mortgage of any
shares with a commercial lending institution, provided that any
subsequent transfer of said shares by said institution shall be
conducted in the manner set forth in this bylaw.
(3) A stockholder's transfer of any or all of such
stockholder's shares to the corporation or to any other
stockholder of the corporation.
(4) A stockholder's transfer of any or all of such
stockholder's shares to a person who, at the time of such
transfer, is an officer or director of the corporation.
(5) A corporate stockholder's transfer of any or all of
its shares pursuant to and in accordance with the terms of any
merger, consolidation, reclassification of shares or capital
reorganization of the corporate stockholder, or pursuant to a
sale of all or substantially all of the stock or assets of a
corporate stockholder.
(6) A corporate stockholder's transfer of any or all of
its shares to any or all of its stockholders.
(7) A transfer by a stockholder which is a limited or
general partnership to any or all of its partners or former
partners.
In any such case, the transferee, assignee, or other recipient shall
receive and hold such stock subject to the provisions of this bylaw, and there
shall be no further transfer of such stock except in accord with this bylaw.
(g) The provisions of this bylaw may be waived with
respect to any transfer either by the corporation, upon duly authorized
action of its Board of Directors, or by the stockholders, upon the
express written consent of the owners of a majority of the voting power
of the corporation (excluding the votes represented by those shares to
be transferred by the transferring stockholder). This bylaw may be
amended or repealed
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either by a duly authorized action of the Board of Directors or by the
stockholders, upon the express written consent of the owners of a
majority of the voting power of the corporation.
(h) Any sale or transfer, or purported sale or transfer,
of shares of common stock of the corporation shall be null and void
unless the terms, conditions, and provisions of this bylaw are strictly
observed and followed.
(i) The foregoing right of first refusal shall terminate
on either of the following dates, whichever shall first occur:
(1) On August 16, 2010; or
(2) Upon the date securities of the corporation are
first offered to the public pursuant to a registration
statement filed with, and declared effective by, the United
States Securities and Exchange Commission under the
Securities Act of 1933, as amended.
(j) The certificates representing shares of common stock
of the corporation shall bear on their face the following legend so
long as the foregoing right of first refusal remains in effect:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
RIGHT OF FIRST REFUSAL OPTION IN FAVOR OF THE CORPORATION
AND/OR ITS ASSIGNEE(S), AS PROVIDED IN THE BYLAWS OF THE
CORPORATION."
ARTICLE XV
LOANS TO OFFICERS
Section 47. LOANS TO OFFICERS. The corporation may lend money to, or
guarantee any obligation of, or otherwise assist any officer or other employee
of the corporation or of its subsidiaries, including any officer or employee who
is a Director of the corporation or its subsidiaries, whenever, in the judgment
of the Board of Directors, such loan, guarantee or assistance may reasonably be
expected to benefit the corporation. The loan, guarantee or other assistance may
be with or without interest and may be unsecured, or secured in such manner as
the Board of Directors shall approve, including, without limitation, a pledge of
shares of stock of the corporation. Nothing in these Bylaws shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the corporation at
common law or under any statute. (Del. Code Ann., tit. 8, ss. 143)
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ARTICLE XVI
MISCELLANEOUS
Section 48. ANNUAL REPORT.
(a) Subject to the provisions of paragraph (b) of this
Bylaw, the Board of Directors shall cause an annual report to be sent
to each stockholder of the corporation not later than one hundred
twenty (120) days after the close of the corporation's fiscal year.
Such report shall include a balance sheet as of the end of such fiscal
year and an income statement and statement of changes in financial
position for such fiscal year, accompanied by any report thereon of
independent accounts or, if there is no such report, the certificate of
an authorized officer of the corporation that such statements were
prepared without audit from the books and records of the corporation.
When there are more than 100 stockholders of record of the
corporation's shares, as determined by Section 605 of the CGCL,
additional information as required by Section 1501(b) of the CGCL shall
also be contained in such report, provided that if the corporation has
a class of securities registered under Section 12 of the 1934 Act, that
Act shall take precedence. Such report shall be sent to stockholders at
least fifteen (15) days prior to the next annual meeting of
stockholders after the end of the fiscal year to which it relates.
(b) If and so long as there are fewer than 100 holders of
record of the corporation's shares, the requirement of sending of an
annual report to the stockholders of the corporation is hereby
expressly waived.
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