EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
INNOVATIVE VALVE TECHNOLOGIES, INC.
ADOPTED TO BE EFFECTIVE AS OF JULY 18, 1997.
AMENDED AND RESTATED
BYLAWS
OF
INNOVATIVE VALVE TECHNOLOGIES, INC.
TABLE OF CONTENTS
ARTICLE I OFFICES
1.1 Registered Office.............................................1
1.2 Other Offices.................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS
2.1 Place of Meetings.............................................1
2.2 Annual Meeting................................................1
2.3 Special Meetings..............................................2
2.4 Notice of Meeting.............................................2
2.5 Registered Holders of Shares; Closing of Share Transfer
Records; and
Record Date...................................................2
2.6 Quorum of Stockholders; Adjournment...........................3
2.7 Voting by Stockholders........................................3
2.8 Business to be Conducted......................................4
2.9 Proxies.......................................................5
2.10 Approval or Ratification of Acts or Contracts by Stockholders.5
ARTICLE III DIRECTORS
3.1 Powers, Number and Tenure.....................................6
3.2 Qualifications................................................7
3.3 Nomination of Directors.......................................7
3.4 Place of Meeting; Order of Business...........................8
3.5 Regular Meetings..............................................8
3.6 Special Meetings..............................................8
3.7 Attendance at and Notice of Meetings..........................8
3.8 Quorum of and Action by Directors.............................9
3.9 Board and Committee Action Without a Meeting..................9
3.10 Board and Committee Telephone Meetings........................9
3.11 Compensation..................................................9
3.12 Removal.......................................................9
3.13 Committees of the Board of Directors.........................10
ARTICLE IV OFFICERS
4.1 Designation..................................................12
4.2 Chairman of the Board of Directors...........................13
4.3 President....................................................13
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4.4 Vice President...............................................13
4.5 Secretary....................................................13
4.6 Treasurer....................................................14
4.7 Corporate Controller.........................................14
4.8 Assistant Secretaries........................................14
4.9 Assistant Treasurers.........................................14
4.10 Assistant Controllers........................................15
4.11 Other Officers...............................................15
4.12 Vacancies....................................................15
4.13 Removal......................................................15
4.14 Action with Respect to Securities of Other Corporations......15
ARTICLE V CAPITAL STOCK
5.1 Certificates for Shares......................................16
5.2 Transfer of Shares...........................................16
5.3 Ownership of Shares..........................................16
5.4 Regulations Regarding Certificates...........................16
5.5 Lost or Destroyed Certificates...............................16
ARTICLE VI INDEMNIFICATION
6.1 General......................................................17
6.2 Expenses.....................................................17
6.3 Advances.....................................................17
6.4 Request for Indemnification..................................18
6.5 Nonexclusivity of Rights.....................................18
6.6 Insurance and Subrogation....................................18
6.7 Severability.................................................18
6.8 Certain Actions Where Indemnification Is Not Provided........19
6.9 Definitions..................................................19
6.10 Notices......................................................19
6.11 Contractual Rights...........................................20
ARTICLE VII MISCELLANEOUS PROVISIONS
7.1 Bylaw Amendments.............................................20
7.2 Books and Records............................................20
7.3 Notices; Waiver of Notice....................................20
7.4 Resignations.................................................21
7.5 Seal.........................................................21
7.6 Fiscal Year..................................................21
7.7 Facsimile Signatures.........................................21
7.8 Reliance upon Books, Reports and Records.....................21
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BYLAWS
OF
INNOVATIVE VALVE TECHNOLOGIES, INC.
ARTICLE I
OFFICES
1.1 REGISTERED OFFICE. The registered office of Innovative Valve Technologies,
Inc. (the "Corporation") required by the General Corporation Law of the
State of Delaware or any successor statute (the "DGCL"), to be maintained
in the State of Delaware, shall be the registered office named in the
Certificate of Incorporation of the Corporation, as it may be amended or
restated in accordance with the DGCL from time to time (the "Certificate
of Incorporation"), or such other office as may be designated from time to
time by the Board of Directors of the Corporation (the "Board of
Directors" or the "Board") in the manner provided by applicable law.
Should the Corporation maintain a principal office within the State of
Delaware, such registered office need not be identical to such principal
office of the Corporation.
1.2 OTHER OFFICES. The Corporation may also have offices at such other places
both within and without the State of Delaware as the Board of Directors
may determine from time to time or as the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS. Meetings of stockholders shall be held at such place
within or without the State of Delaware as may be designated by the Board
of Directors or the officer calling the meeting, or, in the absence of
such designation, at the registered office of the Corporation in the State
of Delaware.
2.2 ANNUAL MEETING. An annual meeting of the stockholders, for the election of
directors to succeed those whose terms expire or to fill vacancies and for
the transaction of such other business as may properly come before the
meeting, shall be held on such date and at such time as the Board of
Directors shall fix and set forth in the notice of the meeting, which date
shall be within thirteen months subsequent to the last annual meeting of
stockholders. At the annual meeting of the stockholders, only such
business shall be conducted as shall have been properly brought before the
annual meeting as set forth in Section 2.8 hereof. Failure to hold the
annual meeting at the designated time shall not work a dissolution of the
Corporation.
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2.3 SPECIAL MEETINGS. Special meetings of the stockholders may be called at
any time by the Chairman of the Board, the President or a majority of the
Board of Directors. Upon written request of any person or persons who have
duly called a special meeting, it shall be the duty of the Secretary of
the Corporation to fix the date of the meeting to be held not less than
ten nor more than 60 days after the receipt of the request and to give due
notice thereof. If the Secretary shall neglect or refuse to fix the date
of the meeting and give notice thereof, the person or persons calling the
meeting may do so.
2.4 NOTICE OF MEETING. Written or printed notice of all meetings stating the
place, day and hour of the meeting and, in the case of a special meeting,
the purpose or purposes for which the meeting is called, shall be
delivered not less than ten nor more than 60 days before the date of the
meeting, either personally or by mail, by or at the direction of the
Chairman of the Board, President or Secretary of the Corporation, to each
stockholder entitled to vote at such meeting. If mailed, such notice shall
be deemed to be delivered to a stockholder when deposited in the United
States mail addressed to such stockholder at such stockholder's address as
it appears on the stock transfer records of the Corporation, with postage
thereon prepaid.
2.5 REGISTERED HOLDERS OF SHARES; CLOSING OF SHARE TRANSFER RECORDS; AND
RECORD DATE.
(a) REGISTERED HOLDERS AS OWNERS. Unless otherwise provided under
Delaware law, the Corporation may regard the person in whose name
any shares issued by the Corporation are registered in the stock
transfer records of the Corporation at any particular time
(including, without limitation, as of a record date fixed pursuant
to paragraph (b) of this Section 2.5) as the owner of those shares
at that time for purposes of voting those shares, receiving
distributions thereon or notices in respect thereof, transferring
those shares, exercising rights of dissent with respect to those
shares, entering into agreements with respect to those shares, or
giving proxies with respect to those shares; and neither the
Corporation nor any of its officers, directors, employees or agents
shall be liable for regarding that person as the owner of those
shares at that time for those purposes, regardless of whether that
person possesses a certificate for those shares.
(b) RECORD DATE. For the purpose of determining stockholders entitled to
notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive a distribution by the
Corporation (other than a distribution involving a purchase or
redemption by the Corporation of any of its own shares) or a share
dividend, or in order to make a determination of stockholders for
any other proper purpose, the Board of Directors may fix in advance
a date as the record date for any such determination of
stockholders, such date in any case to be not more than 60 days and,
in the case of a meeting of stockholders, not less than ten days,
prior to the date on which the particular action requiring such
determination of
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stockholders is to be taken. The Board of Directors shall not close
the books of the Corporation against transfers of shares during the
whole or any part of such period.
If the Board of Directors does not fix a record date for any
meeting of the stockholders, the record date for determining
stockholders entitled to notice of or to vote at such meeting shall
be at the close of business on the day next preceding the day on
which notice is given, or, if in accordance with Section 7.3 of
these Amended and Restated Bylaws (these "Bylaws") notice is waived,
at the close of business on the day next preceding the day on which
the meeting is held.
2.6 QUORUM OF STOCKHOLDERS; ADJOURNMENT. Unless otherwise provided in the
Certificate of Incorporation, a majority of the outstanding shares of
capital stock of the Corporation entitled to vote, present in person or
represented by proxy, shall constitute a quorum at any meeting of the
stockholders, and the stockholders present at any duly convened meeting
may continue to do business until adjournment notwithstanding any
withdrawal from the meeting of holders of shares counted in determining
the existence of a quorum. Unless otherwise provided in the Certificate of
Incorporation or these Bylaws, any meeting of the stockholders may be
adjourned from time to time by the chairman of the meeting or the holders
of a majority of the issued and outstanding stock, present in person or
represented by proxy, whether or not a quorum is present, without notice
other than by announcement at the meeting at which such adjournment is
taken, and at any such adjourned meeting at which a quorum shall be
present any action may be taken that could have been taken at the meeting
originally called; PROVIDED that if the adjournment is for more than 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 adjourned meeting.
2.7 VOTING BY STOCKHOLDERS.
(a) VOTING ON MATTERS OTHER THAN THE ELECTION OF DIRECTORS. With respect
to any matters as to which no other voting requirement is specified
by the DGCL, the Certificate of Incorporation or these Bylaws, the
affirmative vote required for stockholder action shall be that of a
majority of the shares present in person or represented by proxy at
the meeting (as counted for purposes of determining the existence of
a quorum at the meeting). In the case of a matter submitted for a
vote of the stockholders as to which a stockholder approval
requirement is applicable under the stockholder approval policy of
any stock exchange or quotation system on which the capital stock of
the Corporation is traded or quoted, the requirements under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
any provision of the Internal Revenue Code of 1986, as amended (the
"Code"), in each case for which no higher voting requirement is
specified by the DGCL, the Certificate of Incorporation or these
Bylaws, the vote required for approval shall be the requisite vote
specified in such stockholder approval policy, the Exchange
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Act or Code provision, as the case may be (or the highest such
requirement if more than one is applicable). For the approval of the
appointment of independent public accountants (if submitted for a
vote of the stockholders), the vote required for approval shall be a
majority of the votes cast on the matter.
(b) VOTING IN THE ELECTION OF DIRECTORS. Unless otherwise provided in
the Certificate of Incorporation or these Bylaws in accordance with
the DGCL, directors shall be elected by a plurality of the votes
cast by the holders of outstanding shares of capital stock of the
Corporation entitled to vote in the election of directors at a
meeting of stockholders at which a quorum is present.
(c) OTHER. The Board of Directors, in its discretion, or the officer of
the Corporation presiding at a meeting of stockholders of the
Corporation, in his discretion, may require that any votes cast at
such meeting shall be cast by written ballot.
2.8 BUSINESS TO BE CONDUCTED.
(a) At an annual meeting of stockholders, only such business shall be
conducted, and only such proposals shall be acted upon, as shall
have been brought before the annual meeting (i) by or at the
direction of the Board of Directors or (ii) by any stockholder of
the Corporation who is a stockholder of record at the time of the
giving of such stockholder's notice provided for in this Section
2.8, who shall be entitled to vote at such meeting and who complies
with the requirements of this Section 2.8 and as shall otherwise be
proper subjects for stockholder action and shall be properly
introduced at the meeting. For a proposal to be properly brought
before an annual meeting by a stockholder, in addition to any other
applicable requirements, the stockholder must have given timely
advance notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice must be delivered
to, or mailed and received at, the principal executive offices of
the Corporation not later than the 90th day prior to the first
anniversary of the preceding year's annual meeting; PROVIDED,
HOWEVER, that with respect to the annual meeting of stockholders to
be held in 1998 or in the event that the date of the annual meeting
is more than 30 days before or more than 60 days after such
anniversary date, notice by the stockholder to be timely must be so
delivered not later than the close of business on the later of the
90th day prior to such annual meeting or the 10th day following the
day on which public announcement of the date of such meeting is
first made by the Corporation. Any such stockholder's notice to the
Secretary of the Corporation shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (i) a
description of the proposal desired to be brought before the annual
meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business and
any other stockholders known by such stockholder to be supporting
such proposal,
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(iii) the class and number of shares of the Corporation's stock
which are beneficially owned by the stockholder on the date of such
notice, (iv) any financial interest of the stockholder in such
proposal and (v) a representation that the stockholder intends to
appear in person or by proxy at the meeting to bring the proposed
business before the annual meeting. The presiding officer of the
annual meeting shall determine whether the requirements of this
paragraph (a) have been met with respect to any stockholder
proposal. If the presiding officer determines that a stockholder
proposal was not made in accordance with the terms of this paragraph
(a), he shall so declare at the meeting and any such proposal shall
not be acted upon at the meeting. At a special meeting of
stockholders, only such business shall be acted upon as shall have
been set forth in the notice relating to the meeting required by
Section 2.4 hereof or as shall constitute matters incident to the
conduct of the meeting as the presiding officer of the meeting shall
determine to be appropriate.
(b) Notwithstanding the foregoing provisions of this Section 2.8, a
stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Section 2.8.
2.9 PROXIES. Each stockholder entitled to vote at a meeting of stockholders
may authorize another person or persons to act for him by proxy. Proxies
for use at any meeting of stockholders shall be filed with the Secretary,
or such other officer as the Board of Directors may from time to time
determine by resolution, before or at the time of the meeting. All proxies
shall be received and taken charge of and all ballots shall be received
and canvassed by the secretary of the meeting who shall decide all
questions relating to the qualification of voters, the validity of the
proxies, and the acceptance or rejection of votes, unless an inspector or
inspectors shall have been appointed by the chairman of the meeting, in
which event such inspector or inspectors shall decide all such questions.
2.10 APPROVAL OR RATIFICATION OF ACTS OR CONTRACTS BY STOCKHOLDERS. The Board
of Directors in its discretion may submit any act or contract for approval
or ratification at any annual meeting of the stockholders, or at any
special meeting of the stockholders called for the purpose of considering
any such act or contract, and any act or contract that shall be approved
or be ratified by the vote of the stockholders holding a majority of the
issued and outstanding shares of stock of the Corporation entitled to vote
and present in person or by proxy at such meeting (provided that a quorum
is present) shall be as valid and as binding upon the Corporation and upon
all the stockholders as if it had been approved or ratified by every
stockholder of the Corporation.
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ARTICLE III
DIRECTORS
3.1 POWERS, NUMBER AND TENURE.
(a) The powers of the Corporation shall be exercised by or under the
authority of, and the business and affairs of the Corporation shall
be managed by or under the direction of, the Board of Directors. The
directors, other than those who may be elected by the holders of any
series of Preferred Stock, shall be divided into three classes:
Class I, Class II and Class III. Each director shall serve for a
term ending on the third annual meeting following the annual meeting
at which such director was elected; provided however, that the
directors first elected to Class I shall serve until the annual
meeting of stockholders held in 1998, the directors first elected to
Class II shall serve until the annual meeting of stockholders held
in 1999, and the directors first elected to Class III shall serve
until the annual meeting of stockholders held in 2000. Each director
shall hold office until the annual meeting at which such director's
term expires and, the foregoing notwithstanding, shall serve until
his successor shall have been duly elected and qualified or until
his earlier death or resignation or removal in accordance with the
Certificate of Incorporation or these Bylaws.
(b) At each annual election, the directors chosen to succeed those whose
terms then expire shall be of the same class as the directors they
succeed, unless by reason of any intervening changes in the
authorized number of directors the Board of Directors shall have
designated one or more directorships whose term then expire as
directorships of another class in order more nearly to achieve
equality of number of directors among the classes. In the event of
any change in the authorized number of directors, each director then
continuing to serve as such shall nevertheless continue as a
director of the class of which he is a member until the expiration
of his current term, or his prior death, resignation or removal. The
Board of Directors shall specify the class to which a newly created
directorship should be allocated.
(c) Within the limits specified in the Certificate of Incorporation, the
number of directors that shall constitute the whole Board of
Directors shall be fixed by, and may be increased or decreased from
time to time by, the affirmative vote of a majority of the members
at any time constituting the Board of Directors. Except as provided
in the Certificate of Incorporation, newly created directorships
resulting from any increase in the number of directors and any
vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause shall be
filled by the affirmative vote of a majority of the remaining
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 class of directors in which the new directorship was
created or the vacancy occurred
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and until such director's successor shall have been elected and
qualified or until his earlier death, resignation or removal. No
decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
3.2 QUALIFICATIONS. Directors need not be residents of the State of Delaware
or stockholders of the Corporation.
3.3 NOMINATION OF DIRECTORS. Subject to such rights of the holders of one or
more outstanding series of Preferred Stock of the Corporation to elect one
or more directors in case of arrearages in the payment of dividends or
other defaults as shall be prescribed in the Certificate of Incorporation
or in the resolutions of the Board of Directors providing for the
establishment of any such series, only persons who are nominated in
accordance with the procedures set forth in this Section 3.3 shall be
eligible for election as, and to serve as, directors. Nominations of
persons for election to the Board of Directors may be made at a meeting of
the stockholders at which Directors are to be elected (i) by or at the
direction of the Board of Directors or (ii) by any stockholder of the
Corporation who is a stockholder of record at the time of the giving of
such stockholder's notice provided for in this Section 3.3, who shall be
entitled to vote at such meeting in the election of directors and who
complies with the requirements of this Section 3.3. Such nominations,
other than those made by or at the direction of the Board of Directors,
shall be preceded by timely advance notice in writing to the Secretary of
the Corporation. To be timely, a stockholder's notice shall be delivered
to, or mailed and received at, the principal executive offices of the
Corporation (i) with respect to an election to be held at the annual
meeting of the stockholders of the Corporation, not later than the close
of business on the 90th day prior to the first anniversary of the
preceding year's annual meeting; PROVIDED, HOWEVER, that with respect to
the annual meeting of stockholders to be held in 1998 or in the event that
the date of the annual meeting is more than 30 days before or more than 60
days after such anniversary date, notice by the stockholder to be timely
must be so delivered not later than the close of business on the later of
the 90th day prior to such annual meeting or the 10th day following the
day on which public announcement of the date of such meeting is first made
by the Corporation; and (ii) with respect to an election to be held at a
special meeting of stockholders of the Corporation for the election of
directors not later than the close of business on the tenth day following
the day on which notice of the date of the special meeting was mailed to
stockholders of the Corporation as provided in Section 2.4 hereof or
public disclosure of the date of the special meeting was made, whichever
first occurs. Any such stockholder's notice to the Secretary of the
Corporation shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a director, (i) the
name, age, business address and residence address of such person, (ii) the
principal occupation or employment of such person, (iii) the number of
shares of each class of capital stock of the Corporation beneficially
owned by such person, (iv) the written consent of such person to having
such person's name placed in nomination at the meeting and to serve as a
director if elected and (v) any other information relating to such person
that is required to be disclosed in
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solicitations of proxies for election of directors, or is otherwise
required, pursuant to Regulation 14A under the Exchange Act, and (b) as to
the stockholder giving the notice, (i) the name and address, as they
appear on the Corporation's books, of such stockholder and (ii) the number
of shares of each class of voting stock of the Corporation which are then
beneficially owned by such stockholder. The presiding officer of the
meeting of stockholders shall determine whether the requirements of this
Section 3.3 have been met with respect to any nomination or intended
nomination. If the presiding officer determines that any nomination was
not made in accordance with the requirements of this Section 3.3, he shall
so declare at the meeting and the defective nomination shall be
disregarded. Notwithstanding the foregoing provisions of this Section 3.3,
a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 3.3.
3.4 PLACE OF MEETING; ORDER OF BUSINESS. Except as otherwise provided by law,
meetings of the Board of Directors, regular or special, may be held either
within or without the State of Delaware, at whatever place is specified by
the person or persons calling the meeting. In the absence of specific
designation, the meetings shall be held at the principal office of the
Corporation. At all meetings of the Board of Directors, business shall be
transacted in such order as shall from time to time be determined by the
Chairman of the Board (if any), or in his absence by the President, or by
resolution of the Board of Directors.
3.5 REGULAR MEETINGS. Regular meetings of the Board of Directors shall be
held, in each case, at such hour and on such day as may be fixed by
resolution of the Board of Directors, without further notice of such
meetings. The time or place of holding regular meetings of the Board of
Directors may be changed by the Chairman of the Board or the President by
giving written notice thereof as provided in Section 3.7 hereof.
3.6 SPECIAL MEETINGS. Special meetings of the Board of Directors shall be
held, whenever called by the Chairman of the Board, the President or by
resolution adopted by the Board of Directors, in each case, at such hour
and on such day as may be stated in the notice of the meeting.
3.7 ATTENDANCE AT AND NOTICE OF MEETINGS. Written notice of the time and place
of, and general nature of the business to be transacted at, all special
meetings of the Board of Directors, and written notice of any change in
the time or place of holding the regular meetings of the Board of
Directors, shall be given to each director personally or by mail or by
telegraph, telecopier or similar communication at least one day before the
day of the meeting; PROVIDED, HOWEVER, that notice of any meeting need not
be given to any director if waived by him in writing, or if he shall be
present at such meeting. Participation in a meeting of the Board of
Directors shall constitute presence in person at such meeting, except
where a person participates in the meeting for the express purpose of
objecting to
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the transaction of any business on the ground that the meeting is not
lawfully called or convened.
3.8 QUORUM OF AND ACTION BY DIRECTORS. A majority of the directors in office
shall constitute a quorum of the Board of Directors for the transaction of
business; but a lesser number may adjourn from day to day until a quorum
is present. Except as otherwise provided by law or in these Bylaws, all
questions shall be decided by the vote of a majority of the directors
present.
3.9 BOARD AND COMMITTEE ACTION WITHOUT A MEETING. Unless otherwise restricted
by the Certificate of Incorporation or these Bylaws, any action required
or permitted to be taken at a meeting of the Board of Directors or any
committee thereof may be taken without a meeting if a consent in writing,
setting forth the action so taken, is signed by all the members of the
Board of Directors or such committee, as the case may be, and shall be
filed with the Secretary of the Corporation.
3.10 BOARD AND COMMITTEE TELEPHONE MEETINGS. Subject to the provisions required
or permitted by the DGCL for notice of meetings, unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, members of
the Board of Directors, or members of any committee designated by the
Board of Directors, may participate in and hold a meeting of such Board of
Directors or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in
the meeting can hear each other, and participation in a meeting pursuant
to this Section 3.10 shall constitute presence in person at such meeting,
except where a person participates in the meeting for the express purpose
of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
3.11 COMPENSATION. Directors shall receive such compensation for their services
as shall be determined by the Board of Directors from time to time.
3.12 REMOVAL. No director of the Corporation shall be removed from office as a
director by vote or other action of the stockholders or otherwise except
for cause, and then only by the affirmative vote of the holders of at
least a majority of the voting power of all outstanding shares of capital
stock of the Corporation generally entitled to vote in the election of
directors, voting together as a single class. Cause for removal of a
director shall be as provided by law or in the Certificate of
Incorporation. Any proposal by a stockholder to remove a director of the
Corporation, in order to be validly acted upon at any meeting, shall
comply with paragraph (a) of Section 2.8 hereof.
Notwithstanding the first paragraph of this Section 3.12, whenever
holders of outstanding shares of one or more series of Preferred Stock are
entitled to elect members of the Board of Directors pursuant to the
provisions applicable in the case of arrearages in the payment of
dividends or other defaults contained in the resolution or resolutions of
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the Board of Directors providing for the establishment of any series of
Preferred Stock, any such director of the Corporation so elected may be
removed in accordance with the provision of such resolution or
resolutions.
3.13 COMMITTEES OF THE BOARD OF DIRECTORS.
(a) The Board of Directors, by resolution adopted by a majority of the
full Board of Directors, may designate from among its members one or
more committees (in addition to those listed below), each of which
shall be comprised of one or more of its members, and may designate
one or more of its members as alternate members of any committee,
who may, subject to any limitations by the Board of Directors,
replace absent or disqualified members at any meeting of that
committee. Any such committee, to the extent provided in such
resolution or in the Certificate of Incorporation or these Bylaws,
shall have and may exercise all of the authority of the Board of
Directors to the extent permitted by the DGCL, including, without
limitation, the power and authority to declare a dividend, to
authorize the issuance of stock or to adopt a certificate of
ownership and merger pursuant to Section 253 of the DGCL. Any such
committee may authorize the seal of the Corporation to be affixed to
all papers which may require it. In addition to the above, such
committee or committees shall have such other powers and limitations
of authority as may be determined from time to time by resolution
adopted by the Board of Directors.
(b) The Board of Directors shall have the power at any time to change
the membership of any such committee and to fill vacancies in it. A
majority of the number of members of any such committee shall
constitute a quorum for the transaction of business unless a greater
number is required by a resolution adopted by the Board of
Directors. The act of the majority of the members of a committee
present at any meeting at which a quorum is present shall be the act
of such committee, unless the act of a greater number is required by
a resolution adopted by the Board of Directors. Each such committee
may elect a chairman and appoint such subcommittees and assistants
as it may deem necessary. Except as otherwise provided by the Board
of Directors, meetings of any committee shall be conducted, and
other committee actions shall be taken, in accordance with Sections
3.5, 3.6, 3.7, 3.8, 3.9, 3.10 and 7.3 hereof. In the absence or
disqualification of a member of a committee, the member or members
present at any meeting and not disqualified from voting, whether or
not constituting a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of the
absent or disqualified member. Any member of any such committee
elected or appointed by the Board of Directors may be removed by the
Board of Directors whenever in its judgment the best interests of
the Corporation will be served thereby, but such removal shall be
without prejudice to the contract rights, if any,
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of the person so removed. Election or appointment of a member of a
committee shall not of itself create contract rights.
(c) Any action taken by any committee of the Board of Directors shall
promptly be recorded in the minutes and filed with the Secretary of
the Corporation.
(d) EXECUTIVE COMMITTEE. From and after the date on which the Company
shall first receive payment for shares of Common Stock sold by the
Company in an initial public offering registered under the
Securities Act of 1933, as amended (the "IPO Closing Date"), there
shall be an Executive Committee of the Board of Directors, which
committee shall have and may exercise all the powers and authority
of the Board of Directors between regular or special meetings of the
Board in the management of the business and affairs of the
Corporation, except to the extent limited by Delaware law. Without
limiting the generality of the foregoing, the Executive Committee
shall have the power and authority to (i) declare dividends on any
class of capital stock of the Corporation, (ii) authorize the
issuance of capital stock of the Corporation, (iii) adopt
certificates of ownership and merger pursuant to Section 253 of the
DGCL and (iv) in reference to amending the Certificate of
Incorporation, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by
the Board of Directors as provided in Section 151(a) of the DGCL,
fix the designations and any of the preferences or rights of such
shares relating to dividends, redemptions, dissolution, any
distribution of assets of the Corporation or the conversion into, or
the exchange of such shares for, shares of any other class or
classes or any other series of the same or any other class or
classes of stock of the Corporation or fix the number of shares of
any series of stock or authorize the increase or decrease of the
shares of any series.
(e) AUDIT COMMITTEE. From and after the IPO Closing Date, there shall be
an Audit Committee of the Board of Directors whose members shall
consist solely of directors who are not employees or affiliates of
the Corporation and have no relationship with the Corporation that
would, in the judgment of the Board of Directors, interfere with
their exercise of independent judgment as a member of such
Committee. The Audit Committee shall have and may exercise the power
and authority to recommend to the Board of Directors the accounting
firm to be selected by the Board or to be recommended by it for
stockholder approval, as independent auditor of the financial
statements of the Corporation and its subsidiaries, and to act on
behalf of the Board in meeting and reviewing with the independent
auditors, the chief accounting officer, the chief internal auditor,
if any, and the appropriate corporate officers, matters relating to
corporate financial reporting and accounting procedures and
policies, adequacy of financial, accounting and operating controls
and the scope of the respective audits of the independent auditors
and the internal auditor, if any. The Audit Committee shall
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also review the results of such audits with the respective auditors
and shall report the results of those reviews to the Board of
Directors. The Audit Committee shall submit to the Board of
Directors any recommendations it may have from time to time with
respect to financial reporting and accounting practices and policies
and financial, accounting and operational controls and safeguards.
The Audit Committee may submit to the Compensation Committee any
recommendations it may have with respect to the compensation of the
chief accounting officer and the chief internal auditor, if any. The
Board of Directors shall, by resolution adopted by a majority of the
Board of Directors, designate not less than two of its qualifying
members from time to time to constitute members of the Audit
Committee.
(f) COMPENSATION COMMITTEE. From and after the IPO Closing Date, there
shall be a Compensation Committee of the Board of Directors, whose
members shall consist solely of directors who are not employees or
affiliates of the Corporation and have no relationship with the
Corporation that would, in the judgment of the Board of Directors,
interfere with their exercise of independent judgment as a member of
such committee. The Compensation Committee shall have and may
exercise all the power and authority to (i) establish a general
compensation policy for officers and employees of the Corporation,
including to establish and at least annually review officers'
salaries and levels of officers' participation in the benefit plans
of the Corporation, (ii) prepare any reports that may be required by
the regulations of the Securities and Exchange Commission or
otherwise relating to officer compensation, (iii) approve any
increases in directors' fees and (iv) exercise all other powers of
the Board of Directors with respect to matters involving the
compensation of employees and the employee benefits of the
Corporation as shall be delegated by the Board of Directors to the
Compensation Committee from time to time. Without limiting the
generality of the foregoing, the Compensation Committee shall have
the power and authority to authorize the issuance of capital stock
of the Corporation pursuant to any compensation or benefit plan or
arrangement adopted or entered into by the Corporation. The Board of
Directors shall, by resolution adopted by a majority of the Board,
designate two or more of its qualifying members from time to time to
constitute members of the Compensation Committee.
ARTICLE IV
OFFICERS
4.1 DESIGNATION. The officers of the Corporation shall consist of a Chairman
of the Board, President, Secretary, Treasurer, Corporate Controller and
such Executive, Senior or other Vice Presidents, Assistant Secretaries,
Assistant Treasurers, Assistant Controllers and other officers as may be
elected or appointed by the Board of Directors from time to time. Any
number of offices may be held by the same person.
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4.2 CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the Board of Directors
shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required,
the Chairman of the Board of Directors shall possess the same power as the
President to sign all contracts, certificates and other instruments of the
Corporation which may be authorized by the Board of Directors. The
Chairman of the Board of Directors shall also perform such other duties
and may exercise such other powers as from time to time may be assigned to
him by these Bylaws or by the Board of Directors. In the absence or
incapacity to act of the President, the Chairman of the Board shall serve
as acting President, and when so acting, shall have all the powers of and
be subject to the restrictions of such office.
4.3 PRESIDENT. The President shall be the chief executive officer of the
Corporation and shall have general supervision and control of the
business, affairs and properties of the Corporation and its general
officers, and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He shall have the power to appoint and
remove all subordinate officers, agents and employees, except those
elected or appointed by the Board of Directors, and shall execute all
bonds, mortgages, contracts and other instruments of the Corporation
requiring a seal, under the seal of the Corporation, except where required
or permitted by law to be otherwise signed and executed and except that
the other officers of the Corporation may sign and execute documents when
so authorized by these Bylaws, the Board of Directors or the President.
The President shall also perform such other duties and may exercise such
other powers as from time to time may be assigned to him by these Bylaws
or by the Board of Directors. In the absence or incapacity to act of the
Chairman of the Board, the President shall serve as acting Chairman of the
Board, and when so acting, shall have all the powers of and be subject to
the restrictions of such office.
4.4 VICE PRESIDENT. The Board of Directors may appoint such Vice Presidents as
may be recommended by the President or as they deem necessary or
appropriate. Vice Presidents may be designated as Senior Vice Presidents,
Executive Vice Presidents or some other designation as the Board of
Directors deems appropriate (each a "Vice President"). Each Vice President
shall perform such duties as the Board of Directors may from time to time
prescribe and have such other powers as the President may from time to
time prescribe.
4.5 SECRETARY. The Secretary shall attend the meetings of the
Board of Directors and all
meetings of stockholders and record the proceedings
thereat in a book or books to be kept for that purpose; the Secretary
shall also perform like duties for the standing committees when required.
The Secretary 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 may be prescribed by the Board of Directors
or President, under whose supervision he shall be. If the Secretary shall
be unable or shall refuse to cause to be given notice of all meetings of
the stockholders and special meetings of the Board of Directors, and if
there be no Assistant Secretary, then either the Chairman of the Board
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or the President may choose another officer to cause such notice to be
given. The Secretary shall have custody of the seal of the Corporation and
the Secretary or any Assistant Secretary, if there be any, shall have
authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by the signature of the Secretary or by the
signature of any such 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 Secretary
shall see that all books, reports, statements, certificates and other
documents and records required by law to be kept or filed are properly
kept or filed, as the case may be.
4.6 TREASURER. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipt and
disbursements in books belonging to the Corporation and shall deposit all
moneys and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as
may be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of
Directors, at its regular meeting, or when the Board of Directors so
requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of
Directors, the Treasurer shall give the Corporation a bond 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 his office and for
the restoration to the Corporation, in case of his death, resignation,
retirement or removal from office, of all books papers, vouchers, money
and other property of whatever kind in his possession or under his control
belonging to the Corporation.
4.7 CORPORATE CONTROLLER. The Corporate Controller shall be the chief
accounting officer of the Corporation, shall maintain records of all
assets, liabilities, and transactions of the Corporation and shall be
responsible for the design, installation and maintenance of accounting and
cost control systems and procedures for the Corporation and shall perform
such other duties and have such other powers as from time to time may be
assigned to him by the Board of Directors, the Audit Committee or the
President.
4.8 ASSISTANT SECRETARIES. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there be any, shall perform such duties
and have such powers as from time to time may be assigned to them by the
Board of Directors, the President, any Vice- President, or the Secretary,
and in the absence of the Secretary or in the event of his disability or
refusal to act, shall perform the duties of the Secretary, and when so
acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
4.9 ASSISTANT TREASURERS. Assistant Treasurers, if there by any, shall perform
such duties and have such powers as from time to time may be assigned to
them by the Board of Directors, the President or the Treasurer, and in the
absence of the Treasurer or in the event of his
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disability or refusal to act, shall perform the duties of the Treasurer,
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Treasurer. If required by the Board of Directors, an
Assistant Treasurer shall give the Corporation a bond 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 his office and for the
restoration to the Corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money
and other property of whatever kind in his possession or under his control
belonging to the Corporation.
4.10 ASSISTANT CONTROLLERS. Except as may be otherwise provided in these
Bylaws, Assistant Controllers, if there be any, shall perform such duties
and have such powers as from time to time may be assigned to them by the
Board of Directors, the President, any Vice-President, or the Corporate
Controller, and in the absence of the Corporate Controller or in the event
of his disability or refusal to act, shall perform the duties of the
Corporate Controller, and when so acting, shall have all the powers of and
be subject to all the restrictions upon the Corporate Controller.
4.11 OTHER OFFICERS. Such other officers as to the Board of Directors may
choose shall perform such duties and have such powers, subordinate to
those powers specifically delegated to certain officer in these Bylaws, as
from time to time may be assigned to them by the Board of Directors. The
President of the Corporation shall have the power to choose such other
officers and to prescribe their respective duties and powers, subject to
control by the Board of Directors.
4.12 VACANCIES. Whenever any vacancies shall occur in any office by death,
resignation, increase in the number of offices of the Corporation, or
otherwise, the same shall be filled by the Board of Directors (or the
President, in accordance with Section 4.3 of these Bylaws, subject to
control by the Board of Directors), and the officer so appointed shall
hold office until such officer's successor is elected or appointed in
accordance with these Bylaws or until his earlier death, resignation or
removal.
4.13 REMOVAL. Any officer or agent of the Corporation may be removed by the
Board of Directors whenever in its judgment the best interests of the
Corporation will be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create
contract rights.
4.14 ACTION WITH RESPECT TO SECURITIES OF OTHER CORPORATIONS. Unless otherwise
directed by the Board of Directors, the Chairman of the Board, the
President, any Vice President and the Treasurer of the Corporation shall
each have power to vote and otherwise act on behalf of the Corporation, in
person or by proxy, at any meeting of security holders of or with respect
to any action of security holders of any other corporation in which this
Corporation
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may hold securities and otherwise to exercise any and all rights and
powers which this Corporation may possess by reason of its ownership of
securities in such other corporation.
ARTICLE V
CAPITAL STOCK
5.1 CERTIFICATES FOR SHARES. The certificates for shares of the capital stock
of the Corporation shall be in such form as may be approved by the Board
of Directors or may be uncertificated shares. In the case of certificated
shares, the Corporation shall deliver certificates representing shares to
which stockholders are entitled. Certificates representing such
certificated shares shall be signed by the Chairman of the Board, the
President or a Vice President and either the Secretary or an Assistant
Secretary of the Corporation, and may bear the seal of the Corporation or
a facsimile thereof. The signatures of such officers upon a certificate
may be facsimiles. The stock record books and the blank stock certificate
books shall be kept by the Secretary of the Corporation, or at the office
of such transfer agent or transfer agents as the Board of Directors may
from time to time by resolution determine. In case any officer who has
signed or whose facsimile signature has been placed upon such certificate
shall have ceased to be such officer before such certificate is issued, it
may be issued by the Corporation with the same effect as if such person
were such officer at the date of its issuance.
5.2 TRANSFER OF SHARES. The shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof
in person or by their duly authorized attorneys or legal representatives
upon surrender and cancellation of certificates for a like number of
shares.
5.3 OWNERSHIP OF SHARES. The Corporation shall be entitled to treat the holder
of record of any share or shares of capital stock of the Corporation 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, except as otherwise provided by the laws
of the State of Delaware.
5.4 REGULATIONS REGARDING CERTIFICATES. The Board of Directors shall have the
power and authority to make all such rules and regulations as they may
deem expedient concerning the issue, transfer and registration or the
replacement of certificates for shares of capital stock of the
Corporation.
5.5 LOST OR DESTROYED CERTIFICATES. The Board of Directors may determine the
conditions upon which a new certificate of stock may be issued in place of
a certificate which is alleged to have been lost, stolen or destroyed; and
may, in its discretion, require the owner of such certificate or his legal
representative to give bond, with sufficient surety, to indemnify the
Corporation and each transfer agent and registrar against any and all
losses or claims that
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may arise by reason of the issue of a new certificate in the place of the
one so lost, stolen or destroyed.
ARTICLE VI
INDEMNIFICATION
6.1 GENERAL. The Corporation shall, to the fullest extent permitted by
applicable law in effect on the date of effectiveness of these Bylaws, and
to such greater extent as applicable law may thereafter permit, indemnify
and hold harmless an Indemnitee (as this and all other capitalized words
used in this Article VI not previously defined in these Bylaws are defined
in Section 6.9 hereof) from and against any and all judgments, penalties,
fines (including excise taxes), amounts paid in settlement and, subject to
Section 6.2, Expenses whatsoever arising out of any event or occurrence
related to the fact that Indemnitee is or was a director or officer of the
Corporation. The Corporation may, but shall not be required to, indemnify
and hold harmless an Indemnitee from and against any and all judgments,
penalties, fines (including excise taxes), amounts paid in settlement and,
subject to Section 6.2, Expenses whatsoever arising out of any event or
occurrence related to the fact that Indemnitee is or was an employee or
agent of the Corporation or is or was serving in another Corporate Status
(other than as an officer or director of the Corporation) at the written
request of the Corporation.
6.2 EXPENSES. If Indemnitee is, by reason of his serving as a director,
officer, employee or agent of the Corporation, a party to and is
successful, on the merits or otherwise, in any Proceeding, the Corporation
shall indemnify him against all Expenses actually and reasonably incurred
by him or on his behalf in connection therewith. If any such Indemnitee is
not wholly successful in such Proceeding but is successful, on the merits
or otherwise, as to any Matter in such Proceeding, the Corporation shall
indemnify such Indemnitee against all Expenses actually and reasonably
incurred by him or on his behalf relating to such Matter. The termination
of any Matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such Matter. If
Indemnitee is, by reason of any Corporate Status other than his serving as
a director, officer, employee or agent of the Corporation, a party to and
is successful, on the merits or otherwise, in any Proceeding, the
Corporation may, but shall not be required to, indemnify him against all
Expenses actually and reasonably incurred by him or on his behalf in
connection therewith. To the extent that the Indemnitee is, by reason of
his Corporate Status, a witness in any Proceeding, the Corporation may,
but shall not be required to, indemnify him against all Expenses actually
and reasonably incurred by him or on his behalf in connection therewith.
6.3 ADVANCES. In the event of any threatened or pending action, suit or
proceeding in which Indemnitee is a party or is involved and that may give
rise to a right of indemnification under this Article VI, following
written request to the Corporation by Indemnitee, the
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Corporation shall promptly pay to Indemnitee amounts to cover expenses
reasonably incurred by Indemnitee in such proceeding in advance of its
final disposition upon the receipt by the Corporation of (i) a written
undertaking executed by or on behalf of Indemnitee providing that
Indemnitee will repay the advance if it shall ultimately be determined
pursuant to the provisions of this Article VI or by final judgment or
other final adjudication under the provisions of any applicable law that
Indemnitee is not entitled to be indemnified by the Corporation as
provided in these Bylaws and (ii) satisfactory evidence as to the amount
of such expenses.
6.4 REQUEST FOR INDEMNIFICATION. To request indemnification, Indemnitee shall
submit to the Secretary of the Corporation a written claim or request.
Such written claim or request shall contain sufficient information to
reasonably inform the Corporation about the nature and extent of the
indemnification or advance sought by Indemnitee. The Secretary of the
Corporation shall promptly advise the Board of Directors of such request.
6.5 NONEXCLUSIVITY OF RIGHTS. The rights of indemnification and advancement of
Expenses as provided by this Article VI shall not be deemed exclusive of
any other rights to which Indemnitee may at any time be entitled to under
applicable law, the Certificate of Incorporation, these Bylaws, any
agreement, a vote of stockholders or a resolution of directors of the
Corporation, or otherwise. No amendment, alteration or repeal of this
Article VI or any provision hereof shall be effective as to any Indemnitee
for acts, events and circumstances that occurred, in whole or in part,
before such amendment, alteration or repeal. The provisions of this
Article VI shall continue as to an Indemnitee whose Corporate Status has
ceased for any reason and shall inure to the benefit of his heirs,
executors and administrators. Neither the provisions of this Article VI
nor those of any agreement to which the Corporation is a party shall be
deemed to preclude the indemnification of any person who is not specified
in this Article VI as having the right to receive indemnification or is
not a party to any such agreement, but whom the Corporation has the power
or obligation to indemnify under the provisions of the DGCL.
6.6 INSURANCE AND SUBROGATION. The Corporation shall not be liable under this
Article VI to make any payment of amounts otherwise indemnifiable
hereunder if, but only to the extent that, Indemnitee has otherwise
actually received such payment under any insurance policy, contract,
agreement or otherwise. In the event of any payment hereunder, the
Corporation shall be subrogated to the extent of such payment to all the
rights of recovery of Indemnitee, who shall execute all papers required
and take all action reasonably requested by the Corporation to secure such
rights, including execution of such documents as are necessary to enable
the Corporation to bring suit to enforce such rights.
6.7 SEVERABILITY. If any provision or provisions of this Article VI shall be
held to be invalid, illegal or unenforceable for any reason whatsoever,
the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby; and, to
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the fullest extent possible, the provisions of this Article VI shall be
construed so as to give effect to the intent manifested by the provision
held invalid, illegal or unenforceable.
6.8 CERTAIN ACTIONS WHERE INDEMNIFICATION IS NOT PROVIDED. Notwithstanding any
other provision of this Article VI, no person shall be entitled to
indemnification or advancement of Expenses under this Article VI with
respect to any Proceeding, or any Matter therein, brought or made by such
person against the Corporation.
6.9 DEFINITIONS. For purposes of this Article VI:
(a) "CORPORATE STATUS" describes the status of a person who is or was a
director, officer, employee or agent of the Corporation or of any
other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, provided such person is or was
serving in such capacity at the written request of the Corporation.
For purposes of these Bylaws, "serving at the written request of the
Corporation" includes any service by Indemnitee which imposes duties
on, or involves services by, Indemnitee with respect to any employee
benefit plan or its participants or beneficiaries.
(b) "EXPENSES" shall include all reasonable attorneys' fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other disbursements
or expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend,
investigating, or being or preparing to be a witness in a
Proceeding.
(c) "INDEMNITEE" includes any person who is, or is threatened to be
made, a witness in or a party to any Proceeding as described in
Section 6.1 or 6.2 hereof by reason of his Corporate Status.
(d) "MATTER" is a claim, a material issue or a substantial request for
relief.
(e) "PROCEEDING" includes any action, suit, alternate dispute resolution
mechanism, hearing or any other proceeding, whether civil, criminal,
administrative, arbitrative, investigative or mediative, any appeal
in any such action, suit, alternate dispute resolution mechanism,
hearing or other proceeding and any inquiry or investigation that
could lead to any such action, suit, alternate dispute resolution
mechanism, hearing or other proceeding, except one (i) initiated by
an Indemnitee to enforce his rights under this Article VI or (ii)
pending on or before the date of adoption of these Bylaws.
6.10 NOTICES. Promptly after receipt by Indemnitee of notice of the
commencement of any action, suit or proceeding, Indemnitee shall, if he
anticipates or contemplates making a
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claim for expenses or an advance pursuant to the terms of this Article VI,
notify the Corporation of the commencement of such action, suit or
proceeding; PROVIDED, HOWEVER, that any delay in so notifying the
Corporation shall not constitute a waiver or release by Indemnitee of
rights hereunder and that any omission by Indemnitee to so notify the
Corporation shall not relieve the Corporation from any liability that it
may have to Indemnitee otherwise than under this Article VI. Any
communication required or permitted to the Corporation shall be addressed
to the Secretary of the Corporation at its principal executive offices and
any such communication to Indemnitee shall be addressed to Indemnitee's
address as shown on the Corporation's records unless he specifies
otherwise and shall be personally delivered or delivered by overnight mail
delivery. Any such notice shall be effective upon receipt.
6.11 CONTRACTUAL RIGHTS. The right to be indemnified or to the advancement or
reimbursement of Expenses (i) is a contract right based upon good and
valuable consideration, pursuant to which Indemnitee may sue as if these
provisions were set forth in a separate written contract between
Indemnitee and the Corporation, (ii) is and is intended to be retroactive
and shall be available as to events occurring prior to the adoption of
these provisions and (iii) shall continue after any rescission or
restrictive modification of such provisions as to events occurring prior
thereto.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1 BYLAW AMENDMENTS. The Board of Directors shall have the power to adopt,
amend and repeal from time to time the Bylaws of the Corporation, subject
to the right of stockholders entitled to vote with respect thereto to
amend or repeal such Bylaws as adopted or amended by the Board of
Directors. Bylaws of the Corporation may be adopted, amended or repealed
by the affirmative vote of the holders of at least two-thirds of the
combined voting power of the outstanding shares of all classes of stock of
the Corporation entitled to vote generally in the election of directors,
voting together as a single class, at any annual meeting, or at any
special meeting if notice of the proposed amendment be contained in the
notice of said special meeting, or by the Board of Directors as specified
in the preceding sentence.
7.2 BOOKS AND RECORDS. The Corporation shall keep books and records of account
and shall keep minutes of the proceedings of its stockholders, its Board
of Directors and each
committee of its Board of Directors.
7.3 NOTICES; WAIVER OF NOTICE. Whenever any notice is required to be given to
any stockholder, director or committee member under the provisions of the
DGCL or under the Certificate of Incorporation, as amended, or these
Bylaws, said notice shall be deemed to be sufficient if given (i) by
telegraphic, facsimile, cable or wireless transmission or (ii)
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by deposit of the same in the United States mail, with postage paid
thereon, addressed to the person entitled thereto at his address as it
appears on the records of the Corporation, and such notice shall be deemed
to have been given on the day of such transmission or mailing, as the case
may be.
Whenever any notice is required to be given to any stockholder,
director or committee member under the provisions of the DGCL or under the
Certificate of Incorporation or these Bylaws, a waiver thereof in writing
signed by the person or persons entitled to such notice, whether before or
after the time stated therein, shall be equivalent to the giving of such
notice. Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of,
any regular or special meeting of the stockholders, directors, or members
of a committee of directors need be specified in any written waiver of
notice unless so required by the Certificate of Incorporation or these
Bylaws.
7.4 RESIGNATIONS. Any director or officer may resign at any time. Such
resignations shall be made in writing and shall take effect at the time
specified therein, or, if no time be specified, at the time of its receipt
by the President or the Secretary of the Corporation. The acceptance of a
resignation shall not be necessary to make it effective, unless expressly
so provided in the resignation.
7.5 SEAL. The seal of the Corporation shall be in such form as the Board of
Directors may adopt.
7.6 FISCAL YEAR. The fiscal year of the Corporation shall end on the 31st day
of December of each year or as otherwise provided by a resolution adopted
by the Board of Directors.
7.7 FACSIMILE SIGNATURES. In addition to the provisions for the use of
facsimile signatures elsewhere specifically authorized in these Bylaws,
facsimile signatures of any officer or officers of the Corporation may be
used whenever and as authorized by the Board of Directors.
7.8 RELIANCE UPON BOOKS, REPORTS AND RECORDS. Each director and each member of
any committee designated by the Board of Directors shall, in the
performance of his duties, be fully protected in relying in good faith
upon the books of account or reports made to the Corporation by any of its
officers, or by an independent certified public accountant, or by an
appraiser selected with reasonable care by the Board of Directors or by
any such committee, or in relying in good faith upon other records of the
Corporation.
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