Exhibit 3.4
LASER-PACIFIC MEDIA CORPORATION
AMENDED AND RESTATED BYLAWS
(Amended and Restated as of January 20, 2003)
ARTICLE I
OFFICES
The registered office of the corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware.
The corporation may also establish offices at any place or places within
and outside the State of Delaware as the board of directors may from time to
time designate or as the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meetings.
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Annual meetings of the stockholders of the corporation for the purpose of
electing directors and for the transaction of such other proper business as may
come before such meetings may be held at such time, date and place as the board
of directors shall determine by resolution.
Section 2. Special Meetings.
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Special meetings of the stockholders of the corporation for any purpose or
purposes may be called at any time by a majority of the board of directors, the
chairman of the board of directors, the chief executive officer or the president
of the corporation. Special meetings of the stockholders of the corporation may
not be called by any other person or persons.
Section 3. Place of Meetings.
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All meetings of the stockholders shall be held at such places, within or
without the State of Delaware, as may from time to time be designated by the
person or persons calling the respective meeting and specified in the respective
notices or waivers of notice thereof. The board of directors shall have the
discretion to hold meetings of stockholders by remote communication to the
fullest extent permitted by applicable law.
Section 4. Notice of Meetings.
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Except as otherwise required by law, notice of each meeting of the
stockholders, whether annual or special, shall be given not less than ten (10)
nor more than sixty (60) days before the date of the meeting to each stockholder
of record entitled to vote at such meeting by delivering a written notice
thereof to him or her personally, or by depositing such notice in the United
States mail, in a postage prepaid envelope, directed to him or her at his or her
address as recorded on the books of the corporation or by delivering such notice
by any other lawful means. Except as otherwise expressly required by law, no
publication of any notice of a meeting of the stockholders shall be required.
Every notice of a meeting of the stockholders shall state the place, date and
hour of the meeting, and, in the case of a special meeting, shall also state the
purpose or purposes for which the meeting is called. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall have
waived such notice and such notice shall be deemed waived by any stockholder who
shall attend such meeting in person or by proxy, except a stockholder who shall
attend such 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. Except as otherwise expressly required by law,
notice of any adjourned meeting of the stockholders need not be given if the
time and place thereof are announced at the meeting at which the adjournment is
taken.
Section 5. Quorum.
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Except in the case of any meeting for the election of directors summarily
ordered by a court as provided by law, the holders of record of a majority in
voting power of the outstanding shares of stock of the corporation entitled to
be voted thereat, present in person or by proxy, shall constitute a quorum for
the transaction of business at any meeting of the stockholders of the
corporation. Where a separate vote by a class or classes is required, a majority
of the shares of such class or classes present in person or represented by proxy
shall constitute a quorum entitled to take action with respect to that vote on
that matter. If a quorum shall fail to attend any meeting, the chairman of the
meeting may adjourn the meeting to another place, date, or time.
Section 6. Voting.
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(a) Each stockholder shall, at each meeting of the stockholders, be
entitled to vote in person or by proxy each share or fractional share of the
stock of the corporation having voting rights on the matter in question and
which shall have been held by him or her and registered in his or her name on
the books of the corporation:
(i) on the date fixed pursuant to Article VI, Section 6 of these bylaws as
the record date for the determination of stockholders entitled to notice of and
to vote at such meeting, or
(ii) if no such record date shall have been so fixed, then (a) at the close
of business on the day next preceding the day on which notice of the meeting
shall be given or (b) if notice of the meeting shall be waived, at the close of
business on the day next preceding the day on which the meeting shall be held.
(b) Shares of its own capital stock belonging to the corporation or to
another corporation, if a majority of the shares entitled to vote in the
election of directors in such other corporation is held, directly or indirectly,
by the corporation, shall neither be entitled to vote nor be counted for quorum
purposes. Nothing in the previous sentence shall be construed as limiting the
right of any corporation to vote stock, including but not limited to its own
stock, held by it in a fiduciary capacity. Persons whose stock is pledged shall
be entitled to vote, unless in the transfer by the pledgor on the books of the
corporation he or she shall have expressly empowered the pledgee to vote
thereon, in which case only the pledgee, or his or her proxy, may represent such
stock and vote thereon. Stock having voting power standing of record in the
names of two or more persons, whether fiduciaries, members of a partnership,
joint tenants, tenants in common, tenants by entirety or otherwise, or with
respect to which two or more persons have the same fiduciary relationship, shall
be voted in accordance with the provisions of the General Corporation Law of the
State of Delaware, as amended or replaced.
(c) At any meeting of the stockholders, every stockholder entitled to vote
may vote in person or by proxy authorized by an instrument in writing or by a
transmission permitted by law filed in accordance with the procedure established
for the meeting; provided, however, that no proxy shall be voted or acted upon
after three (3) years from its date unless said proxy shall provide for a longer
period. The attendance at any meeting of a stockholder who may theretofore have
given a proxy shall not have the effect of revoking the same unless he or she
shall in writing so notify the secretary of the meeting prior to the voting of
the proxy or unless he or she votes in person at such meeting. At any meeting of
the stockholders all elections shall be determined by a plurality of the votes
cast, and all other matters, except as otherwise provided in the certificate of
incorporation, in these bylaws or by law, or by the rules or regulations of any
stock exchange applicable to the corporation, shall be decided by the vote of a
majority in voting power of the stockholders present in person or by proxy and
entitled to vote thereat and thereon, a quorum being present. The vote at any
meeting of the stockholders on any question need not be by ballot, unless so
directed by the chairman of the meeting. On a vote by ballot each ballot shall
be signed by the stockholder voting, or by his or her proxy, if there be such
proxy, and it shall state the number of shares voted.
Section 7. List of Stockholders.
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The secretary of the corporation shall prepare and make, at least ten (10)
days before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting for a period of at least 10 days prior to
the meeting: (i) on a reasonably accessible electronic network, provided that
the information required to gain access to such list is provided with the notice
of the meeting, or (ii) during ordinary business hours, at the principal place
of business of the corporation. If the corporation determines to make the list
available on an electronic network, the corporation may take reasonable steps to
ensure that such information is available only to stockholders of the
corporation. If the meeting is to be held at a place, then the list shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. If the meeting
is to be held solely by means of remote communication, then the list shall also
be open to the examination of any stockholder during the whole time of the
meeting on a reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of the meeting.
Section 8. Inspectors.
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The corporation may, and to the extent required by law, shall, in advance
of any meeting of stockholders, appoint one or more inspectors to act at the
meeting and make a written report thereof. The corporation may designate one or
more persons as alternate inspectors to replace any inspector who fails to act.
If no inspector or alternate is able to act at a meeting of stockholders, the
person presiding at the meeting may, and to the extent required by law, shall,
appoint one or more inspectors to act at the meeting. Each inspector, before
entering upon the discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. Every vote taken by ballots shall
be counted by a duly appointed inspector or inspectors.
Section 9. Action Without Meeting.
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Except as otherwise provided in the certificate of incorporation, any
action required to be taken at any annual or special meeting of stockholders of
the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent 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. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing 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 holders or members to take the action were delivered to the
corporation in accordance with applicable law.
Section 10. Advance Notice of Stockholder Proposals and Nominations.
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Nominations of persons for election to the board of directors and the
proposal of business to be transacted by the stockholders may be made at an
annual meeting of stockholders (a) pursuant to the corporation's notice with
respect to such meeting, (b) by or at the direction of the board of directors or
(c) by any stockholder of record of the corporation who was a stockholder of
record at the time of the giving of the notice provided for in the following
paragraph, who is entitled to vote at the meeting and who has complied with the
notice procedures set forth in this section.
For nominations or other business to be properly brought before an annual
meeting by a stockholder pursuant to clause (c) of the foregoing paragraph, (1)
the stockholder must have given timely notice thereof in writing to the
secretary of the corporation, (2) such business must be a proper matter for
stockholder action under the Delaware General Corporation Law, as amended or
replaced, (3) 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 that term is defined in subclause (c)(iii) of this
paragraph, 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 holder 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 (4) 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. To be timely, a stockholder's
notice must be delivered to the secretary at the principal executive offices of
the corporation not less than 90 or more than 120 days prior to the first
anniversary (the "Anniversary") of the date on which the corporation first
mailed its proxy materials for the preceding year's annual meeting of
stockholders; provided, however, that if the date of the annual meeting is
advanced more than 30 days prior to or delayed by more than 30 days after the
anniversary of the preceding year's annual meeting, notice by the stockholder to
be timely must be so delivered not later than the close of business on the later
of (i) the 90th day prior to such annual meeting and (ii) the 10th day following
the day on which public announcement of the date of such meeting is first made.
Such stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or reelection as a director, all
information relating to such person as would be required to be disclosed in
solicitations of proxies for the election of such nominees as directors pursuant
to Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and such person's written consent to serve as a director if
elected; (b) as to any other business that the stockholder proposes to bring
before the meeting, a brief description of such business, the reasons for
conducting such business at the meeting and any material interest in such
business of such stockholder and the beneficial owner, if any, on whose behalf
the proposal is made; (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 that are owned beneficially and of record by such stockholder and
such beneficial owner, and (iii) whether such stockholder or beneficial owner
intends to deliver a proxy statement and form of proxy to holders of, in the
case of a 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").
Notwithstanding anything in the second sentence of the second paragraph of
this Section 10 of Article II to the contrary, in the event that the number of
directors to be elected to the board of directors 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 100
days prior to the Anniversary, a stockholder's notice required by this bylaw
shall also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the secretary at
the principal executive offices of the corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the corporation.
Only persons nominated in accordance with the procedures set forth in this
Section 10 of Article II shall be eligible to be elected as directors and only
such business shall be conducted at an annual meeting of stockholders as shall
have been brought before the meeting in accordance with the procedures set forth
in this Section 10 of Article II. The chairman of the meeting shall have the
power and the duty to determine whether a nomination or any business proposed to
be brought before the meeting has been made 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 proposed business
or nomination shall not be presented for stockholder action at the meeting and
shall be disregarded.
Only such business shall be conducted at a special meeting of stockholders
as shall have been brought before the meeting pursuant to the corporation's
notice of meeting. Nominations of persons for election to the board of directors
may be made at a special meeting of stockholders at which directors are to be
elected pursuant to the corporation's notice of meeting (a) by or at the
direction of the board of directors or (b) by any stockholder of record of the
corporation who is a stockholder of record at the time of giving of notice
provided for in this paragraph, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this Section 10 of Article
II. Nominations by stockholders of persons for election to the board of
directors may be made at such a special meeting of stockholders if the
stockholder's notice required by the second paragraph of this Section 10 of
Article II shall be delivered to the secretary at the principal executive
offices of the corporation not later than the close of business on the later of
the 90th day prior to such special meeting and the 10th day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees proposed by the board of directors to be elected at such
meeting.
For purposes of this Section 10 of Article II, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or a comparable national news service or in a document publicly
filed by the corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this Section 10 of Article II,
a stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to matters set forth
in this Section 10 of Article II. Nothing in this Section 10 of Article II shall
be deemed to affect any rights of stockholders to request inclusion of proposals
in the corporation's proxy statement pursuant to Rule 14a-8 under the Exchange
Act.
Section 11. Organization.
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Such person as the board of directors may have designated or, in the
absence of such a person, the chairman of the board or, in his or her absence,
the chief executive officer of the corporation or, in his or her absence, such
person as may be chosen by the holders of a majority in voting power of the
outstanding shares of stock of the corporation entitled to vote who are present,
in person or by proxy, shall call to order any meeting of the stockholders and
act as chairman of the meeting. In the absence of the secretary of the
corporation, the secretary of the meeting shall be such person as the chairman
appoints.
Section 12. Conduct of Business.
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The chairman of any meeting of stockholders shall determine the order of
business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seem to him or her in order.
The chairman shall have the power to adjourn the meeting to another place, date
and time. The date and time of the opening and closing of the polls for each
matter upon which the stockholders will vote at the meeting shall be announced
at the meeting.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors.
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The number of directors which shall constitute the whole board shall not be
less than one nor more than nine as the board of directors may determine by
resolution adopted by the unanimous vote of the board of directors from time to
time. The directors shall be elected at the annual meeting of the stockholders,
except as provided in Section 2 of this Article, and each director shall hold
office until his successor is duly elected and qualified.
Section 2. Vacancies.
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Vacancies and newly created directorships which result from any increase in
the authorized number of directors or any increase in the number of directors
within the range of directors authorized may be filled only by the unanimous
vote of the directors then in office, though less than quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and qualified. If
there are no directors in office, then an election of directors may be held in
the manner provided by statute. If at the time of the filling of any vacancy or
any newly created directorship, the directors in office constitute less than a
majority of the whole board, the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent of the total number of
the shares outstanding at that time and who have 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 office.
Section 3. General Powers.
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The board of directors shall manage and direct the business of the
corporation, and any exercise all such powers of the corporation and do all such
lawful acts and things as the stockholders are not by statute, by the
certificate of incorporation or by these bylaws directed or required to exercise
or do.
Section 4. Meetings.
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The board of directors of the corporation may hold meetings, both regular
and special, either within or outside the State of Delaware. Board members may
participate in such meetings by means of conference telephone or similar
communications equipment in accordance with the General Corporation Law of the
State of Delaware. Regular meetings of the board of directors may be held
without notice at such places and times as the board of directors may determine
by resolution from time to time. The chairman of the board or the chief
executive officer may call special meetings of the board of directors and any
two directors may call special meetings of the board of directors by written
request and on seventy-two hours' written or oral notice.
Section 5. First Meeting of the Board of Directors.
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The first meeting of each newly elected board of directors shall be held at
such time and place as the stockholders shall fix by vote at the annual meeting,
and no notice of such meeting shall be necessary to the newly elected directors
in order to hold the meeting legally, provided that a quorum shall be present.
If the stockholders fail to fix the time or place of such first meeting of the
newly elected board of directors, or if such meeting is not held at the time and
place which the stockholders have fixed, the meeting may be held at such time
and place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Specified Powers of the Board of Directors.
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Without prejudice to the general powers described in Section 3 of this
Article, the board of directors shall have the following powers, subject to
applicable law, the certificate of incorporation and these bylaws:
(a) To adopt a common seal of corporation;
(b) To make and change regulations, not inconsistent with these bylaws, for
the management of the corporation's business and affairs;
(c) To purchase or otherwise acquire for the corporation any property,
rights or privileges which the corporation is authorized to acquire, at such
price or consideration and generally on such terms and conditions as they think
fit;
(d) To pay for any property purchased for the corporation either wholly or
partly in money, stock, bonds, debentures or other securities of the
corporation;
(e) To borrow money and to make and issue notes, bonds, debentures, and
other negotiable and transferable instruments, mortgages, deeds of trust, and
trust agreements, and to do every act and thing necessary to effectuate them;
(f) To remove any officer, with or without cause, and in their discretion,
from time to time, to devolve the powers and duties of any officer upon any
other person for the time being;
(g) To appoint and remove or suspend such subordinate officers, employees,
agents or factors as they may deem necessary and to determine their duties;
(h) To confer upon any officer of the corporation the power to appoint,
remove and suspend subordinate officers, agents, employees and factors, and to
determine their duties and fix, and from time to time change, their salaries or
remuneration and to require security as and when they think fit;
(i) To determine who shall be authorized on the corporation's behalf to
make and sign bills, notes, acceptances, endorsements, checks, releases,
receipts, contracts and other instruments;
(j) To determine who shall be entitled to vote in the name and behalf of
the corporation upon, or to assign and transfer, any shares of stock, bonds, or
other securities of other corporations held by the corporation;
(k) To call special meetings of stockholders for any purpose or purposes;
(l) To fix and from time to time change the employment agreements, the
salaries, or the remuneration of all officers, agents, employees or factors, and
to require security as and when they think fit; and
(m) To fill vacancies in the offices of chairman of the board, vice
chairman of the board, president, any vice president, secretary, treasurer or
chief financial officer, as well as any other vacancies as may exist in the
offices of the corporation.
Section 7. Quorum.
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At all meetings of the Board a quorum for the transaction of business shall
be (a) three directors if the then authorized number of directors constituting
the board is fixed at four; (b) four directors if the then authorized number of
directors constituting the whole board is fixed at five, six, or seven; and (c)
five directors if the then authorized number of directors constituting the whole
board is fixed at eight or nine; and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the board
of directors, except as statute or the certificate of incorporation may
otherwise provide. If a quorum is not present at any meeting of the board of
directors, the directors present at the meeting may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum is present. A meeting at which a quorum initially is present may continue
to transact business notwithstanding the withdrawal of directors, provided that
at least a majority of the required quorum for such meeting approves any action
taken at such meeting.
Section 8. Action Without Meeting.
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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, in
accordance with the General Corporation Law of the State of Delaware if all of
the members of the board or committee, as the case may be, consent thereto in
writing, and such written consent is filed with the minutes of proceedings of
the board or committee.
Section 9. Committees of Directors.
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The board of directors may, by resolution passed by a majority of the whole
board, designate one or more committees, each consisting of one or more of the
directors of the corporation. The board may designate one or more directors as
alternate members of any committee, to replace any absent or disqualified member
at any committee, to replace any absent or disqualified member at any committee
meeting.
Any such committee, to the extent provided in the resolution of the board
of directors, shall have and may exercise all to 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 so require; however, such committee shall have neither the
power nor authority to amend the certificate of incorporation or these bylaws,
adopt an agreement of merger or consolidation, recommend to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or the sale,
lease or exchange of all or substantially all of the corporation's property and
assets; and no such committee shall have neither the power nor authority to
declare a dividend or to authorize the issuance of the stock unless the
certificate of incorporation or the resolution designating such committee
expressly provides and confers such power and authority. Such committee or
committees shall have such name or names as the board of directors may be
resolution determine from time to time.
Section 10. Meetings of Committees.
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Each committee shall keep regular minutes of its meetings and report the
same to the board of directors when required.
Section 11. Compensation of Directors.
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Unless the certificate of incorporation or these bylaws specifically
provide otherwise, the board of directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may also be paid a
fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for
attendance at committee meetings.
Section 12. Interested Directors.
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No contract or transaction between the corporation and one or more of its
directors or officers, or between the corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors of officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the board of
directors or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose, if:
(a) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the board of directors or
the committee, and the board of directors or committee in good faith authorizes
the contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or
(b) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the holders of a majority of the stock outstanding; or
(c) The contract or transaction is fair as to the corporation as of the
time it is authorized, approved or ratified by the board of directors, a
committee thereof or the stockholders.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the board of directors or of a committee which
authorizes the contract or transaction
Section 13. Actions Requiring Unanimous Approval.
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The following actions require the unanimous approval or consent of all
directors:
(a) The election or removal from office of an officer;
(b) Amendment of these bylaws; and
(c) Election of a director to fill a vacancy on the board of directors,
whether created by an increase in the authorized number of directors or
otherwise.
Section 14. Removal of Directors.
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Unless otherwise restricted by the certificate of incorporation or by law,
the holders of a majority of shares entitled to vote at an election of
directors, may remove, with or without cause, any director or the entire board
of directors.
ARTICLE IV
NOTICE
Section 1. Notice.
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When, under the provisions of the statutes, the certificate of
incorporation or these bylaws, notice is required to be given to any director or
stockholder, such notice shall not be construed to mean personal notice. Such
notice may be given in writing, by mail, addressed to such director or
stockholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram.
Section 2. Waiver of Notice.
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Whenever any notice is required to be given under the provisions of the
statutes, the certificate of incorporation or these bylaws, a waiver thereof in
writing, signed by the person or persons entitled to said notice, whether before
or after the time stated therein, shall be deemed to be equivalent to notice.
ARTICLE V OFFICERS
Section 1. Officers.
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The board of directors shall elect the officers of the corporation, and
they shall be a chairman of the board, a president, a vice-president, a
secretary and a treasurer. The board of directors may also choose additional
vice-presidents, and one or more assistant secretaries and assistant treasurers.
The same person may hold any number of offices, unless the certificate of
incorporation or these bylaws provide otherwise.
Section 2. Election of Officers.
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The board of directors, at its first meeting after each annual meeting of
stockholders, shall elect a chairman of the board, a president, one or more
vice-presidents, a secretary and a treasurer. The board of directors may appoint
such other officers and agents as it deems necessary. Such other officers and
agents who shall hold their offices for such time, and shall exercise such
powers and perform such duties as the board shall determine from time to time.
Section 3. Officers' Salaries and Employment Agreements.
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The board of directors shall fix the salaries of and approve all employment
agreements with all officers and agents of the corporation.
Section 4. Term of Office and Removal of Officers.
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The officers of the corporation shall hold office until their successors
are elected and qualify. The board of directors may remove at any time by the
affirmative vote of all of the directors any officer which the board has elected
or appointed. The board of directors shall fill any vacancy that occurs in any
office of the corporation.
Section 5. The Chairman of the Board.
-------------------------------------------
The chairman of the board shall be the chief executive officer of the
corporation, shall preside at all meetings of the board of directors, and shall
exercise such powers and perform such duties as the board of directors or these
bylaws may assign or prescribe to him. If there is no president, the chairman of
the board shall in addition be the president of the corporation and shall have
the powers and duties prescribed in Section 6 of this Article V.
Section 6. The President.
-------------------------------
The president shall be the chief operating officer of the corporation,
shall preside at all meetings of the stockholders, shall have general and active
management of the business of the corporation and shall see that all orders and
resolutions of the board of directors are carried into effect.
Section 7. The Vice-Presidents.
-------------------------------------
The board of directors may elect such vice-presidents as it deems
necessary, and such vice-presidents shall perform such duties and have such
other powers as the board of directors may prescribe from time to time.
Section 8. The Secretary and Assistant Secretaries.
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The secretary shall attend all meetings of the board of directors and all
meetings of the stockholders, shall record all the proceedings of the meetings
of the corporation and the board of directors in a book to be kept for that
purpose, and shall perform like duties for the standing committees when
required. The secretary, who shall act under the supervision of the chairman of
the board, shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the board of directors, and shall perform
such other duties as the board of directors or chairman of the board shall
prescribe. The secretary shall have custody of the corporate seal of the
corporation and along with an assistant secretary, shall have authority to affix
the same to any instrument requiring it and when so affixed, it may be attested
by the secretary's signature or by the signature of the assistant secretary. The
board of directors may give general authority to any other officer to affix the
seal of the corporation and to attest the affixing by his signature. The
assistant secretary, or if there are more than one, the assistant secretaries in
the order which the board of directors shall determine (or if there is no such
determination, in the order of their election) shall, in the absence of the
secretary or if the secretary is unable or refuses to act, perform the duties
and exercise the powers of the secretary and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
Section 9. The Treasurer and Assistant Treasurers.
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The treasurer shall have the custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the corporation and shall deposit all monies and other valuable
effects in the names and to the credit of the corporation in such depositories
as the board of directors may designate. The treasurer shall disburse the funds
of the corporation as the board of directors may order, take proper vouchers for
such disbursements, and shall render to the chairman of the board and to the
board of directors, at its regular meetings, or when the board so requires, an
account of all transactions as treasurer and of the financial condition of the
corporation. If the board of directors requires, the treasurer shall give the
corporation a bond (which shall be renewed every six years), in such sum and
with such surety or sureties as shall be satisfactory to the board of directors,
for the faithful performance of the duties of office and for the restoration to
the corporation, in case of the treasurers death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind belonging to the corporation which are in the possession or under
the control of the treasurer. The assistant treasurer, or if there are more than
one, the assistant treasurers, in the order which the board of directors shall
determine (or if there is no such determination, in the order of their
election), in the absence of the treasurer or in the event the treasurer is
unable or refuses to act, shall perform the duties and exercise the powers of
the treasurer and shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
ARTICLE VI
STOCK CERTIFICATES
Section 1. Certificate of Stock.
--------------------------------------
The corporation shall issue to each holder of stock a certificate which
certifies the number of shares such holder of stock owns in the corporation, and
the chairman or vice-chairman of the board of directors, or the president or a
vice-president and the treasurer, an assistant treasurer, the secretary or an
assistant secretary of the corporation shall sign such certificate in the name
of the corporation. Any or all of the signatures on the certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, the corporation may issue such certificate with the same effect as if
said person were such officer, transfer agent or registrar at the date of issue.
Section 2. Lost Certificates.
-----------------------------------
The board of directors may direct the issuance of a replacement
certificate, on such terms and conditions as the board may require, in place of
any certificate which the corporation issued, and which is alleged to have been
lost, stolen or destroyed. The board of directors may require that the owner of
the lost, stolen or destroyed certificate prepare an affidavit of that fact as a
condition to the issuance of a new certificate. The board of directors in its
discretion and as a condition to the issuance of a new certificate may require
the owner of such lost, stolen or destroyed certificate or his legal
representative, to give the corporation a bond sufficient to indemnify the
corporation against any claim that may be made against it with the respect to
the alleged lost, stolen or destroyed certificate or the replacement
certificate.
Section 3. Transfer of Stock.
-----------------------------------
Upon surrender to the corporation or the transfer agent of the corporation
of a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
Section 4. Rules as to Issues of Certificates.
----------------------------------------------------
The board of directors may make such rules and regulations as it may deem
expedient concerning the issue, transfer and registration of certificates of
stock of the corporation.
Each and every person accepting from the corporation certificates of stock
therein shall furnish to the corporation a written statement of his or her
residence or post office address, or such other information as shall be required
by law.
Section 5. Status of Recordholders.
-----------------------------------------
The board of directors shall be entitled to treat the holder of record of
any share or shares of stock as the holder in fact thereof, and accordingly
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, save as expressly provided by law.
Section 6. Fixing Record Date.
------------------------------------
In order for the corporation to determine which stockholders are entitled
to receive notice of or to vote at any meeting of stockholders or any
adjournment thereof, to express consent to corporate action without a meeting,
to receive payment of any dividend or other distribution or allotment of any
rights, to exercise any rights with respect to any change, conversion or
exchange of stock or for the purpose of any other lawful action, the board of
directors may fix, in advance, a record date, which shall not be more than sixty
nor less than ten days before the date of such meeting, nor more than sixty days
before any other action.
If the board of directors does not so fix a record date:
(a) The record date for determining stockholders entitled to receive 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 business day next preceding the date on which
the meeting is held;
(b) The record date for determining stockholders entitled to give consent
to corporate action in writing without a meeting, when no previous action by the
board of directors is necessary, shall be the day on which the first written
consent is given; and
(c) The record date for determining Stockholders for any other purpose
shall be at the close of business on the day on which the board of directors
adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting,
provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
Section 7. Registered Stockholders.
-----------------------------------------
The corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends, and
to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and the corporation 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 the corporation shall
have express or other notice thereof, except as otherwise provided by the laws
of Delaware.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends.
---------------------------
The board of directors may, at any regular or special meeting, pursuant to
law, declare and pay dividends upon the capital stock of the corporation,
subject to any restrictive provisions of the certificate of incorporation.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation. The board of
directors may set apart, out of any of the funds of the corporation available
for dividends, such sum or sums as the directors in their discretion designate
as a reserve or reserves for any proper purpose and the directors may modify or
abolish any such reserve.
Section 2. Annual Statements.
-----------------------------------
The board of directors shall present at each annual meeting, and at any
special meeting of the stockholders when called for by vote of the stockholders,
a full and clear statement of the business and condition of the corporation.
Section 3. Checks.
------------------------
Such officer or officers or such other person or persons as the board of
directors may from time to time designate shall sign all checks or demands for
money and notes of the corporation.
Section 4. Fiscal Year.
-----------------------------
The board of directors shall fix the fiscal year of the corporation by
resolution.
Section 5. Seal.
----------------------
The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 6. Indemnification of Directors, Officers, Employees
and Other Agents.
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(a) Scope of Indemnification. The corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative by reason of the fact that such person is or was
a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding to the fullest extent permitted by Delaware law
and the certificate of incorporation.
(b) Advance of Expenses. Costs and expenses (including attorneys' fees)
incurred by or on behalf of a director, officer, employer or agent in defending
or investigating any action, suit proceeding or investigation shall be paid by
the corporation in advance of the final disposition of such matter, if such
director, officer, employee or agent shall undertake in writing to repay any
such advances in the event that it is ultimately determined that he or she is
not entitled to indemnification. Notwithstanding the foregoing, no advance shall
be made by the corporation if a determination is reasonably and promptly made by
the Board by a majority vote of a quorum of disinterested directors, or (if such
a quorum is not obtained or, even if obtainable, a quorum of disinterested
directors so directs) by independent legal counsel, that, based upon the facts
known to the Board or counsel at the time such determination is made, (i) the
director, officer, employee or agent acted in bad faith or deliberately breached
his or her duty to this Corporation or its stockholders, and (ii) as a result of
such actions by the director, officer, employee or agent, it is more likely than
not that it will ultimately be determined that such director, officer, employee
or agent is not entitled to indemnification.
(c) Other Rights and Remedies. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other subsections of this
Section 6 of Article VII shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any Amended and Restated Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
(d) Continuation of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Section 6 of Article VII shall, unless otherwise provided when authorized
or ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 7. Directors' and Officers' Liability Insurance.
--------------------------------------------------------------
The board of directors shall have the power to purchase liability insurance
on behalf of the corporation, for the directors and officers of the corporation.
ARTICLE VIII
AMENDMENTS
Section 1. Amendment of Bylaws.
-------------------------------------
New bylaws may be adopted or these bylaws may be amended or repealed by the
vote or written consent of the holders of a majority of the outstanding shares
of stock entitled to vote, or by the board of directors, when such power is
conferred upon the board by the certificate of incorporation. The power of the
board of directors to adopt, amend or repeal bylaws shall not divest the
stockholders of the power nor limit their power to adopt, amend or repeal
bylaws.