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EXHIBIT 3.4
BYLAWS
AS AMENDED THROUGH JANUARY 31, 2000
OF
MAXIM INTEGRATED PRODUCTS, INC.
(A DELAWARE CORPORATION)
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ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation in the
State of Delaware shall be in the City of Dover, County of Kent.
Section 2. Other Offices. The Corporation shall also have and maintain an office
or principal place of business in Sunnyvale, California, or at such other place
as may be fixed by the Board of Directors, and may also have offices at such
other places, both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
CORPORATE SEAL
Section 3. Corporate Seal. The Corporate seal shall consist of a die bearing the
name of the Corporation and the inscription, "Corporate Seal-Delaware." Said
seal may be used by causing it or a facsimile thereof to be impressed or affixed
or reproduced or otherwise.
ARTICLE III
STOCKHOLDERS' MEETINGS
Section 4. Place of Meetings. Meetings of the stockholders of the Corporation
shall be held at such place, either within or without the State of Delaware, as
may be designated from time to time by the Board of Directors, or, if not so
designated, then at the office of the Corporation required to be maintained
pursuant to Section 2 hereof.
Section 5. Annual Meeting. The annual meeting of the stockholders of the
Corporation, for the purpose of election of Directors and for such other
business as may lawfully come before it shall be held on such date and at such
time as may be designated from time to time by the Board of Directors, or, if
not so designated, then at 10 o'clock A.M. on the second Thursday in November in
each year if not a legal holiday, and, if a legal holiday, at the same hour and
place on the next succeeding day not a holiday.
Section 6. Special Meetings. Special meetings of the stockholders of the
Corporation may be called at any time, for any purpose or purposes, by the Board
of Directors or by the holders of outstanding stock of the Corporation holding
at least ten (10) percent of the voting power of the Corporation.
Section 7. Notice of Meetings. Except as otherwise provided by law or the
Certificate of Incorporation, written notice of each meeting of stockholders
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder entitled to vote at such meeting, such
notice to specify the place, date and hour and purpose or purposes of the
meeting. Notice of the time, place and purpose of any meeting of stockholders
may be waived in writing, signed by the person entitled to notice thereof,
either before or after such meeting, and will be waived by any stockholder by
his attendance thereat in person or by proxy, except when the stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Any stockholder so waiving notice of such meeting shall be
bound by the proceedings of any such meeting in all respects as if due notice
thereof had been given.
Section 8. Quorum. At all meetings of stockholders, except where otherwise
provided by statute or by the Certificate of Incorporation, or by these Bylaws,
the presence, in person or by proxy duly authorized, of the
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holders of a majority of the outstanding shares of stock entitled to vote shall
constitute a quorum for the transaction of business. Any shares, the voting of
which at said meeting has been enjoined, or which for any reason cannot be
lawfully voted at such meeting, shall not be counted to determine a quorum at
such meeting. In the absence of a quorum any meeting of stockholders may be
adjourned, from time to time, by vote of the holders of a majority of the shares
represented thereat, but no other business shall be transacted at such meeting.
The stockholders present at a duly called or convened meeting, at which a quorum
is present, may continue to transact business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum. Except as
otherwise provided by law, the Certificate of Incorporation or these Bylaws, all
action taken by the holders of a majority of the voting power represented at any
meeting at which a quorum is present shall be valid and binding upon the
Corporation.
Section 9. Adjournment and Notice of Adjourned Meetings. Any meeting of
stockholders, whether annual or special, may be adjourned from time to time by
the vote of a majority of the shares, the holders of which are present either in
person or by proxy. When a meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting the Corporation may transact any business that might have been
transacted at the original meeting. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 10. Voting Rights. For the purpose of determining those stockholders
entitled to vote at any meeting of the stockholders, except as otherwise
provided by law, only persons in whose names shares stand on the stock records
of the Corporation on the record date, as provided in Section 12 of these
Bylaws, shall be entitled to vote at any meeting of stockholders. Every person
entitled to vote or execute consents shall have the right to do so either in
person or by an agent or agents authorized by a written proxy executed by such
person or his duly authorized agent, which proxy shall be filed with the
Secretary at or before the meeting at which it is to be used. An agent so
appointed need not be a stockholder. No proxy shall be voted after three (3)
years from its date of creation unless the proxy provides for a longer period.
All elections of Directors shall be by written ballot, unless otherwise provided
in the Certificate of Incorporation.
Section 11. Joint Owners of Stock. If shares or other securities having voting
power stand of record in the names of two (2) or more persons, whether
fiduciaries, members of a partnership, joint tenants, tenants in common, tenants
by the entirety, or otherwise, or if two (2) or more persons have the same
fiduciary relationship respecting the same shares, unless the Secretary is given
written notice to the contrary and is furnished with a copy of the instrument or
order appointing them or creating the relationship wherein it is so provided,
their acts with respect to voting shall have the following effect: (a) if only
one (1) votes, his act binds all; (b) if more than one (1) votes, the act of the
majority so voting binds all; (C) if more than one (1) votes, but the vote is
evenly split on any particular matter, each faction may vote the securities in
question proportionally, or may apply to the Delaware Court of Chancery for
relief as provided in the General Corporation Law of Delaware, Section 217(b).
If the instrument filed with the Secretary shows that any such tenancy is held
in unequal interests, a majority or even split for the purpose of this
subsection shall be a majority or even split in interest.
Section 12. List of Stockholders. The Secretary shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at said meeting, arranged in alphabetical order,
showing the address of each stockholder and the number of shares registered in
the name of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not specified, at the place where
the meeting is to be held. The list shall be produced and kept at the time and
place of meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 13. Action without Meeting.
(a) Any action required by statute to be taken at any annual or
special meeting of the stockholders, or any action which may be
taken at any annual or special meeting of the stockholders, may
be taken
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without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so
taken, are signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted and shall be
delivered to the Corporation by delivery to its registered
office in the State of Delaware, its principal place of business
or an officer or agent of the Corporation having custody of the
book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return
receipt requested.
(b) Every written consent shall bear the date of signature of each
stockholder who signs the consent, and no written consent shall
be effective to take the corporate action referred to therein
unless, within sixty (60) days of the earliest dated consent
delivered to the Corporation in the manner herein required,
written consents signed by a sufficient number of stockholders
to take action are delivered to the Corporation by delivery to
its registered office in the State of Delaware, its principal
place of business or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to a Corporation's
registered office shall be by hand or by certified or registered
mail, return receipt requested.
(c) No such action by written consent may be taken following the
effectiveness of the registration of any class of securities of
the Corporation under the Securities Exchange Act of 1934, as
amended.
Section 14. Organization. At every meeting of stockholders, the Chairman of the
Board of Directors, or, if a Chairman has not been appointed or is absent, the
President, or, if the President is absent, the most senior Vice President
present, or in the absence of any such officer, a chairman of the meeting chosen
by a majority in interest of the stockholders entitled to vote, present in
person or by proxy, shall act as chairman. The Secretary, or, in his absence, an
Assistant Secretary directed to do so by the President, shall act as secretary
of the meeting.
ARTICLE IV
DIRECTORS
Section 15. Number and Term of Office. The number of Directors that shall
constitute the whole of the Board of Directors shall be five (5). The number of
authorized Directors may be modified from time to time by amendment of this
Bylaw in accordance with the provisions of Section 43 hereof. Except as provided
in Section 17, the Directors shall be elected by the stockholders at their
annual meeting in each year and shall hold office until the next annual meeting
and until their successors shall be duly elected and qualified, or until their
death, resignation or removal. Directors need not be stockholders unless so
required by the Certificate of Incorporation. If for any cause, the Directors
shall not have been elected at an annual meeting, they may be elected as soon
thereafter as convenient at a special meeting of the stockholders called for
that purpose in the manner provided in these Bylaws.
Section 16. Powers. The powers of the Corporation shall be exercised, its
business conducted and its property controlled by the Board of Directors, except
as may be otherwise provided by statute or by the Certificate of Incorporation.
Section 17. Vacancies. Unless otherwise provided in the Certificate of
Incorporation, vacancies and newly created directorships resulting from any
increase in the authorized number of Directors may be filled by a majority of
the Directors then in office, although less than a quorum, or by a sole
remaining Director, and each Director so elected shall hold office for the
unexpired portion of the term of the Director whose place shall be vacant and
until his successor shall have been duly elected and qualified. A vacancy in the
Board of Directors shall be deemed to exist under this Section 17 in the case of
the death, removal or resignation of any Director, or if the stockholders fail
at any meeting of stockholders at which directors are to be elected (including
any meeting referred to in Section 19 below) to elect the number of Directors
then constituting the whole Board of Directors.
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Section 18. Resignation. Any Director may resign at any time by delivering his
written resignation to the Secretary, such resignation to specify whether it
will be effective at a particular time, upon receipt by the Secretary or at the
pleasure of the Board of Directors. If no such specification is made, it shall
be deemed effective at the pleasure of the Board of Directors. When one or more
Directors shall resign from the Board of Directors, effective at a future date,
a majority of the Directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote thereon
to take effect when such resignation or resignations shall become effective, and
each Director so chosen shall hold office for the unexpired portion of the term
of the Director whose place shall be vacated and until his successor shall have
been duly elected and qualified.
Section 19. Removal. At a special meeting of stockholders called for the purpose
in the manner hereinabove provided, subject to the limitation set forth in
Section 141(k) of the General Corporation Law of Delaware, the Board of
Directors, or any individual Director, may be removed from office, with or
without cause, and a new Director or Directors elected by a vote of stockholders
holding a majority of the outstanding shares entitled to vote at an election of
Directors.
Section 20. Meetings.
(a) Annual Meetings. The annual meeting of the Board of Directors
shall be held immediately after the annual meeting of
stockholders and at the place where such meeting is held. No
notice of an annual meeting of the Board of Directors shall be
necessary and such meeting shall be held for the purpose of
electing officers and transacting such other business as may
lawfully come before it.
(b) Regular Meetings. Except as hereinafter otherwise provided,
regular meetings of the Board of Directors shall be held at the
office of the Corporation required to be maintained pursuant to
Section 2 hereof. Unless otherwise restricted by the Certificate
of Incorporation, regular meetings of the Board of Directors may
also be held at any place within or without the State of
Delaware which has been designated by resolution of the Board of
Directors or the written consent of all Directors.
(c) Special Meetings. Unless otherwise restricted by the Certificate
of Incorporation, special meetings of the Board of Directors may
be held at any time and place within or without the State of
Delaware whenever called by the Chairman of the Board or the
President or any Vice President or the Secretary of the
Corporation or any two (2) Directors.
(d) Telephone Meetings. Any member of the Board of Directors, or of
any committee thereof, may participate in a meeting by means of
conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear
each other, and participation in a meeting by such means shall
constitute presence in person at such meeting.
(e) Notice of Meetings. Notice of the date, time and place of all
meetings of the Board of Directors, other than regular meetings
held pursuant to Section 20(a) or (b) above shall be delivered
personally, orally or in writing, or by telephone or telegraph
to each Director, at least forty-eight (48) hours before the
meeting, or sent in writing to each Director by first-class
mail, charges prepaid, at least four (4) days before the
meeting. Such notice may be given by the Secretary of the
Corporation or by the person or persons who called a meeting.
Such notice need not specify the purpose of the meeting. Notice
of any meeting may be waived in writing at any time before or
after the meeting and will be waived by any Director by
attendance thereat, except when the Director attends the meeting
for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting
is not lawfully called or convened.
(f) Waiver of Notice. The transaction of all business at any meeting
of the Board of Directors, or any committee thereof, however
called or noticed, or wherever held, shall be as valid as though
had at a meeting duly held after regular call and notice, if a
quorum be present and if, either before or after the meeting,
each of the Directors not present shall sign a written waiver of
notice, or a consent to holding such meeting, or an approval of
the minutes thereof. All such waivers, consents or approvals
shall be filed with the corporate records or made a part of the
minutes of the meeting.
Section 21. Quorum and Voting.
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(a) Quorum. Unless the Certificate of Incorporation requires a
greater number and except with respect to indemnification
questions arising under Section 41(a) hereof, for which a quorum
shall be one-third of the exact number of Directors fixed from
time to time in accordance with Section 15 of these Bylaws, but
not less than one (1), a quorum of the Board of Directors shall
consist of a majority of the exact number of Directors fixed
from time to time in accordance with Section 15 of these Bylaws,
but not less than one (1); provided, however, at any meeting
whether a quorum be present or otherwise, a majority of the
Directors present may adjourn from time to time until the time
fixed for the next regular meeting of the Board of Directors,
without notice other than by announcement at the meeting.
(b) Majority Vote. At each meeting of the Board of Directors at
which a quorum is present all questions and business shall be
determined by a vote of a majority of the Directors present,
unless a different vote be required by law, the Certificate of
Incorporation or these Bylaws.
Section 22. Action without Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and such writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
Section 23. Fees and Compensation. Directors shall be entitled to such
compensation for their services as may be approved by the Board of Directors,
including, if so approved by resolution of the Board of Directors, a fixed sum
and expenses of attendance, if any, for attendance at each regular or special
meeting of the Board of Directors or any meeting of a committee of directors.
Nothing herein contained shall be construed to preclude any Director from
serving the Corporation in any other capacity as an officer, agent, employee, or
otherwise and receiving compensation therefor.
Section 24. Committees.
(a) Executive Committee. The Board of Directors may by resolution
passed by a majority of the whole Board of Directors, appoint an
Executive Committee to consist of one (1) or more members of the
Board of Directors. The Executive Committee, to the extent
permitted by law and specifically granted by the Board of
Directors, shall have and may exercise when the Board of
Directors is not in session all powers of the Board of Directors
in the management of the business and affairs of the
Corporation, including, without limitation, the power and
authority to declare a dividend or to authorize the issuance of
stock, except such committee shall not have the power or
authority to amend the Certificate of Incorporation, to adopt an
agreement of merger or consolidation, to recommend to the
stockholders the sale, lease or exchange of all or substantially
all of the Corporation's property and assets, to recommend to
the stockholders of the Corporation a dissolution of the
Corporation or a revocation of a dissolution or to amend these
Bylaws.
(b) Other Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board of Directors, from time
to time appoint such other committees as may be permitted by
law. Such other committees appointed by the Board of Directors
shall consist of one (1) or more members of the Board of
Directors, and shall have such powers and perform such duties as
may be prescribed by the resolution or resolutions creating such
committees, but in no event shall such committee have the powers
denied to the Executive Committee in these Bylaws.
(c) Term. The members of all committees of the Board of Directors
shall serve a term coexistent with that of the Board of
Directors which shall have appointed such committee. The Board
of Directors, subject to the provisions of subsections (a) or
(b) of this Section 24, may at any time increase or decrease the
number of members of a committee or terminate the existence of a
committee. The membership of a committee member shall terminate
on the date of his death or voluntary resignation. The Board of
Directors may at any time for any reason remove any individual
committee member and the Board of Directors may fill any
committee vacancy created by death, resignation, removal or
increase in the number of members of the committee. The Board of
Directors may designate one or more Directors as alternate
members of any committee, who may replace any absent or
disqualified member at any meeting of the committee, and, in
addition, in the absence or disqualification of any member of a
committee, the member or members thereof present
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at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member.
(d) Meetings. Unless the Board of Directors shall otherwise provide,
regular meetings of the Executive Committee or any other
committee appointed pursuant to this Section 24 shall be held at
such times and places as are determined by the Board of
Directors, or by any such committee, and when notice thereof has
been given to each member of such committee, no further notice
of such regular meetings need be given thereafter. Special
meetings of any such committee may be held at the principal
office of the Corporation required to be maintained pursuant to
Section 2 hereof, or at any place which has been designated from
time to time by resolution of such committee or by written
consent of all members thereof, and may be called by any
Director who is a member of such committee, upon written notice
to the members of such committee of the time and place of such
special meeting given in the manner provided for the giving of
written notice to members of the Board of Directors of the time
and place of special meetings of the Board of Directors. Notice
of any special meeting of any committee may be waived in writing
at any time before or after the meeting and will be waived by
any Director by attendance thereat, except when the Director
attends such special meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or
convened. A majority of the authorized number of members of any
such committee shall constitute a quorum for the transaction of
business, and the act of a majority of those present at any
meeting at which a quorum is present shall be the act of such
committee.
Section 25. Organization. At every meeting of the Directors, the Chairman of the
Board of Directors, or, if a Chairman has not been appointed or is absent, the
President, or if the President is absent, the most senior Vice President, or, in
the absence of any such officer, a chairman of the meeting chosen by a majority
of the Directors present, shall preside over the meeting. The Secretary, or in
his absence, an Assistant Secretary directed to do so by the President, shall
act as secretary of the meeting.
ARTICLE V
OFFICERS
Section 26. Officers Designated. The officers of the Corporation shall be the
Chairman of the Board of Directors, the President, one or more Vice Presidents,
the Secretary and the Chief Financial Officer, all of whom shall be elected at
the annual meeting of the Board of Directors. The order of the seniority of the
Vice Presidents shall be in the order of their nomination, unless otherwise
determined by the Board of Directors. The Board of Directors may also appoint
such other officers and agents with such powers and duties as it shall deem
necessary. The Board of Directors may assign such additional titles to one or
more of the officers as it shall deem appropriate. Any one person may hold any
number of offices of the Corporation at any one time unless specifically
prohibited therefrom by law. The salaries and other compensation of the officers
of the Corporation shall be fixed by or in the manner designated by the Board of
Directors.
Section 27. Tenure and Duties of Officers.
(a) General. All officers shall hold office at the pleasure of the
Board of Directors and until their successors shall have been
duly elected and qualified, unless sooner removed. If the office
of any officer becomes vacant for any reason, the vacancy may be
filled by the Board of Directors.
(b) Duties of Chairman of the Board of Directors. The Chairman of
the Board of Directors, when present, shall preside at all
meetings of the stockholders and the Board of Directors. The
Chairman of the Board of Directors shall perform the duties
commonly incident to his office and shall also perform such
other duties and have such other powers as the Board of
Directors shall designate from time to time.
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(c) Duties of President. The President shall preside at all meetings
of the stockholders and at all meetings of the Board of
Directors, unless the Chairman of the Board of Directors has
been appointed and is present. The President shall, subject to
the control of the Board of Directors and unless otherwise
determined by the Board of Directors, serve as the Chief
Executive Officer of the Corporation and shall have general
supervision, direction and control of the business and officers
of the Corporation. The President shall perform other duties
commonly incident to his office and shall also perform such
other duties and have such other powers as the Board of
Directors and the Chairman of the Board, if one has been
appointed, shall designate from time to time.
(d) Duties of Vice Presidents. The Vice Presidents, in the order of
their seniority, may assume and perform the duties of the
President in the absence or disability of the President or
whenever the office of President is vacant. The Vice Presidents
shall perform other duties commonly incident to their office and
shall also perform such other duties and have such other powers
as the Board of Directors or the President shall designate from
time to time.
(e) Duties of Secretary. The Secretary shall attend all meetings of
the stockholders and of the Board of Directors, and shall record
all acts and proceedings thereof in the minute book of the
Corporation. The Secretary shall give notice in conformity with
these Bylaws of all meetings of the stockholders, and of all
meetings of the Board of Directors and any committee thereof
requiring notice. The Secretary shall perform all other duties
given him in these Bylaws and other duties commonly incident to
his office and shall also perform such other duties and have
such other powers as the Board of Directors shall designate from
time to time. The President may direct any Assistant Secretary
to assume and perform the duties of the Secretary in the absence
or disability of the Secretary, and each Assistant Secretary
shall perform other duties commonly incident to his office and
shall also perform such other duties and have such other powers
as the Board of Directors or the President shall designate from
time to time.
(f) Duties of Chief Financial Officer. The Chief Financial Officer
shall keep or cause to be kept the books of account of the
Corporation in a thorough and proper manner, and shall render
statements of the financial affairs of the Corporation in such
form and as often as required by the Board of Directors or the
President. The Chief Financial Officer, subject to the order of
the Board of Directors, shall have the custody of all funds and
securities of the Corporation. The Chief Financial Officer shall
perform other duties commonly incident to his office and shall
also perform such other duties and have such other powers as the
Board of Directors or the President shall designate from time to
time. The President may direct any Assistant Chief Financial
Officer to assume and perform the duties of the Chief Financial
Officer in the absence or disability of the Chief Financial
Officer, and each Assistant Chief Financial Officer shall
perform other duties commonly incident to his office and shall
also perform such other duties and have such other powers as the
Board of Directors or the President shall designate from time to
time.
Section 28. Resignations. Any officer may resign at any time by giving written
notice to the Board of Directors or to the President or to the Secretary. Any
such resignation shall be effective when received by the person or persons to
whom such notice is given, unless a later time is specified therein, in which
event the resignation shall become effective at such later time. Unless
otherwise specified in such notice, the acceptance of any such resignation shall
not be necessary to make it effective.
Section 29. Removal. Any officer may be removed from office at any time, either
with or without cause, by the vote or written consent of a majority of the
Directors in office at the time, or by any committee or superior officers upon
whom such power of removal may have been conferred by the Board of Directors.
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ARTICLE VI
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES OWNED BY THE
CORPORATION
Section 30. Execution of Corporate Instruments. The Board of Directors may, in
its discretion, determine the method and designate the signatory officer or
officers, or other person or persons, to execute on behalf of the Corporation
any corporate instrument or document, or to sign on behalf of the Corporation
the corporate name without limitation, or to enter into contracts on behalf of
the Corporation, except where otherwise provided by law or these Bylaws, and
such execution or signature shall be binding upon the Corporation.
Unless otherwise specifically determined by the Board of Directors or otherwise
required by law, promissory notes, deeds of trust, mortgages and other evidences
of indebtedness of the Corporation, and other corporate instruments or documents
requiring the corporate seal, and certificates of shares of stock owned by the
Corporation, shall be executed, signed or endorsed by the Chairman of the Board
of Directors, the President or any Vice President, and by the Secretary or
Treasurer or any Assistant Secretary or Assistant Treasurer. All other
instruments and documents requiring the corporate signature, but not requiring
the corporate seal, may be executed as aforesaid or in such other manner as may
be directed by the Board of Directors.
All checks and drafts drawn on banks or other depositaries on funds to the
credit of the Corporation or in special accounts of the Corporation shall be
signed by such person or persons as the Board of Directors shall authorize so to
do.
Section 31. Voting of Securities Owned by the Corporation. All stock and other
securities of other Corporations owned or held by the Corporation for itself, or
for other parties in any capacity, shall be voted, and all proxies with respect
thereto shall be executed, by the person authorized so to do by resolution of
the Board of Directors, or, in the absence of such authorization, by the
Chairman of the Board of Directors, the President, or any Vice President.
ARTICLE VII
SHARES OF STOCK
Section 32. Form and Execution of Certificates. Certificates for the shares of
stock of the Corporation shall be in such form as is consistent with the
Certificate of Incorporation and applicable law. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by or in the name of
the Corporation by the Chairman of the Board of Directors, or the President or
any Vice President and by the Treasurer or Assistant Treasurer or the Secretary
or Assistant Secretary, certifying the number of shares owned by him in the
Corporation. Where such certificate is countersigned by a transfer agent other
than the Corporation or its employee, or by a registrar other than the
Corporation or its employee, any other signature on the certificate may be a
facsimile. In case any officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent, or registrar before such certificate is
issued, it may be issued with the same effect as if he were such officer,
transfer agent, or registrar at the date of issue. Each certificate shall state
upon the face or back thereof, in full or in summary, all of the designations,
preferences, limitations, restrictions on transfer and relative rights of the
shares authorized to be issued.
Section 33. Lost Certificates. A new certificate or certificates shall be issued
in place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, stolen, or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen, or destroyed. The Corporation may require, as a condition
precedent to the issuance of a new certificate or certificates, the owner of
such lost, stolen, or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require or to
give the Corporation a surety bond in such
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form and amount as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen, or destroyed.
Section 34. Transfers. Transfers of record of shares of stock of the Corporation
shall be made only upon its books by the holders thereof, in person or by
attorney duly authorized, and upon the surrender of a properly endorsed
certificate or certificates for a like number of shares.
Section 35. Fixing Record Dates.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, the Board of Directors may fix, in
advance, a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date shall not be
more than sixty (60) nor less than ten (10) days before the date
of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at
the close of business on the day next preceding the day on which
notice is given, or if notice is waived, at the close of
business on the day next preceding the day on which the meeting
is held. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the
Board of Directors may fix a new record date for the adjourned
meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a
meeting, the Board of Directors may fix, in advance, a record
date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten (10) days
after the date upon which the resolution fixing the record date
is adopted by the Board of Directors. If no record date has been
fixed by the Board of Directors, the record date for determining
stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of
Directors is required by law, shall be the first date on which a
signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation by delivery
to its registered office in the State of Delaware, its principal
place of business or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to a Corporation's
registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed
by the Board of Directors and prior action by the Board of
Directors is required by law, the record date for determining
stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day
on which the Board of Directors adopts the resolution taking
such prior action.
(c) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders
entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix, in advance, a
record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted, and
which record date shall be not more than sixty (60) days prior
to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the
close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
Section 36. Registered Stockholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of Delaware.
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ARTICLE VIII
OTHER SECURITIES OF THE CORPORATION
Section 37. Execution of Other Securities. All bonds, debentures and other
corporate securities of the Corporation, other than stock certificates, may be
signed by the Chairman of the Board of Directors, the President or any Vice
President, or such other person as may be authorized by the Board of Directors,
and the corporate seal impressed thereon or a facsimile of such seal imprinted
thereon and attested by the signature of the Secretary or an Assistant
Secretary, or the Treasurer or an Assistant Treasurer; provided, however, that
where any such bond, debenture or other corporate security shall be
authenticated by the manual signature of a trustee under an indenture pursuant
to which such bond, debenture or other corporate security shall be issued, the
signatures of the persons signing and attesting the corporate seal on such bond,
debenture or other corporate security may be the imprinted facsimile of the
signatures of such persons. Interest coupons appertaining to any such bond,
debenture or other corporate security, authenticated by a trustee as aforesaid,
shall be signed by the Treasurer or an Assistant Treasurer of the Corporation or
such other person as may be authorized by the Board of Directors, or bear
imprinted thereon the facsimile signature of such person. In case any officer
who shall have signed or attested any bond, debenture or other corporate
security, or whose facsimile signature shall appear thereon or on any such
interest coupon, shall have ceased to be such officer before the bond, debenture
or other corporate security so signed or attested shall have been delivered,
such bond, debenture or other corporate security nevertheless may be adopted by
the Corporation and issued and delivered as though the person who signed the
same or whose facsimile signature shall have been used thereon had not ceased to
be such officer of the Corporation.
ARTICLE IX
DIVIDENDS
Section 38. Declaration of Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors pursuant to law at any regular or
special meeting. Dividends may be paid in cash, in property, or in shares of the
capital stock, subject to the provisions of the Certificate of Incorporation.
Section 39. Dividend Reserve. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the Board of Directors from time to time, in their absolute discretion,
think proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the Board of Directors shall think conducive to the
interests of the Corporation, and the Board of Directors may modify or abolish
any such reserve in the manner in which it was created.
ARTICLE X
FISCAL YEAR
Section 40. Fiscal Year. Unless otherwise fixed by resolution of the Board of
Directors, the fiscal year of the Corporation shall end on the last day of June.
ARTICLE XI
INDEMNIFICATION
Section 41. Indemnification of Officers, Directors, Employees and Other Agents.
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(a) Directors. The Corporation shall indemnify its directors to the
fullest extent permitted by the Delaware General Corporation Law.
(b) Officers, Employees and Other Agents. The Corporation shall have
power to indemnify its officers, employees and other agents as set
forth in the Delaware General Corporation Law.
(c) Good Faith.
(1) For purposes of any determination under this Bylaw, a Director, or
any member of a committee designated by the Board of Directors,
shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Corporation, and, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe that his
conduct was unlawful, if he relied in good faith upon the records
of the Corporation and upon such information, opinions, reports or
statements presented to the Corporation by any of the
Corporation's officers or employees, or committees of the Board of
Directors, or by any other person as to matters the Director
reasonably believes are within such other person's professional or
expert competence and who has been selected with reasonable care
by or on behalf of the Corporation.
(2) The termination of any proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the Corporation,
and, with respect to any criminal proceeding, that he had
reasonable cause to believe that his conduct was unlawful.
(3) The provisions of this paragraph (C) shall not be deemed to be
exclusive or to limit in any way the circumstances in which a
person may be deemed to have met the applicable standard of
conduct set forth by the Delaware General Corporation Law.
(d) Expenses. The Corporation shall advance, prior to the final
disposition of any proceeding, promptly following request
therefor, all expenses incurred by any Director in
connection with such proceeding upon receipt of an
undertaking by or on behalf of such person to repay said
amounts if it should be determined ultimately that such
person is not entitled to be indemnified under this Bylaw
or otherwise.
(e) Enforcement. Without the necessity of entering into an
express contract, all rights to indemnification and
advances under this Bylaw shall be deemed to be contractual
rights and be effective to the same extent and as if
provided for in a contract between the Corporation and the
Director who serves in such capacity at any time while this
Bylaw and other relevant provisions of the Delaware General
Corporation Law and other applicable law, if any, are in
effect. Any right to indemnification or advances granted by
this Bylaw to a Director shall be enforceable by or on
behalf of the person holding such right in any court of
competent jurisdiction if (i) the claim for indemnification
or advances is denied, in whole or in part, or (ii) no
disposition of such claim is made within ninety (90) days
of request therefor. The claimant in such enforcement
action, if successful in whole or in part, shall be
entitled to be paid also the expense of prosecuting his
claim. The Corporation shall be entitled to raise by
pleading as an affirmative defense to any such action
(other than an action brought to enforce a claim for
expenses incurred in connection with any proceeding in
advance of its final disposition when the required
undertaking has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it
permissible under the Delaware General Corporation Law for
the Corporation to indemnify the claimant for the amount
claimed. Neither the failure of the Corporation (including
its Board of Directors, independent legal counsel or its
stockholders) to have made a determination prior to the
commencement of such action that indemnification of the
claimant is proper in the circumstances because he has met
the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of
Directors, independent legal counsel or its stockholders)
that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a
presumption that claimant has not met the applicable
standard of conduct.
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(f) Non-Exclusivity of Rights. The rights conferred on any
person by this Bylaw shall not be exclusive of any other
right which such person may have or hereafter acquire under
any statute, provision of the Certificate of Incorporation,
Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding
office. The Corporation is specifically authorized to enter
into individual contracts with any or all of its directors,
officers, employees or agents respecting indemnification
and advances, to the fullest extent permitted by the
Delaware General Corporation Law.
(g) Survival of Rights. The rights conferred on any person by
this Bylaw shall continue as to a person who has ceased to
be a Director, officer, employee or other agent and shall
inure to the benefit of the heirs, executors and
administrators of such a person.
(h) Insurance. To the fullest extent permitted by the Delaware
General Corporation Law, the Corporation, upon approval by
the Board of Directors, may purchase insurance on behalf of
any person required or permitted to be indemnified pursuant
to this Bylaw.
(i) Amendments. Any repeal or modification of this Bylaw shall
only be prospective and shall not affect the rights under
this Bylaw in effect at the time of the alleged occurrence
of any action or omission to act that is the cause of any
proceeding against any agent of the Corporation.
(j) Savings Clause. If this Bylaw or any portion hereof shall
be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless
indemnify each director to the full extent permitted by any
applicable portion of this Bylaw that shall not have been
invalidated, or by any other applicable law.
(k) Certain Definitions. For the purposes of this Bylaw, the
following definitions shall apply:
(1) The term "proceeding" shall be broadly construed and shall
include, without limitation, the investigation, preparation,
prosecution, defense, settlement and appeal of any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative.
(2) The term "expenses" shall be broadly construed and shall
include, without limitation, court costs, attorneys' fees, witness
fees, fines, amounts paid in settlement or judgment and any other
costs and expenses of any nature or kind incurred in connection
with any proceeding.
(3) The term the "Corporation" shall include, in addition to the
resulting corporation, any constituent Corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Bylaw with
respect to the resulting or surviving corporation as he would have
with respect to such constituent corporation if its separate
existence had continued.
(4) References to a "director," "officer," "employee," or "agent"
of the Corporation shall include, without limitation, situations
where such person is serving at the request of the Corporation as
a Director, officer, employee, trustee or agent of another
corporation, partnership, joint venture, trust or other
enterprise.
(5) References to "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit
plan; and references to "serving at the request of the
Corporation" shall include any service as a Director, officer,
employee or agent of the Corporation which imposes duties on, or
involves services by, such Director, officer, employee, or agent
with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best
interests of the Corporation" as referred to in this Bylaw.
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ARTICLE XII
NOTICES
Section 42. Notices.
(a) Notice to Stockholders. Whenever, under any provisions of these
Bylaws, notice is required to be given to any stockholder, it
shall be given in writing, personally or timely and duly deposited
in the United States mail, postage prepaid, and addressed to his
last known post office address as shown by the stock record of the
Corporation or its transfer agent.
(b) Notice to Directors. Any notice required to be given to any
Director may be given by the method stated in subsection (e) of
Section 20 of these Bylaws except that such notice other than one
which is delivered personally shall be sent to such address as
such Director shall have filed in writing with the Secretary, or,
in the absence of such filing, to the last known post office
address of such Director.
(c) Address Unknown. If no address of a stockholder or Director be
known, notice may be sent to the office of the Corporation
required to be maintained pursuant to Section 2 hereof.
(d) Affidavit of Mailing. An affidavit of mailing, executed by a duly
authorized and competent employee of the Corporation or its
transfer agent appointed with respect to the class of stock
affected, specifying the name and address or the names and
addresses of the stockholder or stockholders, or Director or
Directors, to whom any such notice or notices was or were given,
and the time and method of giving the same, shall be conclusive
evidence of the statements therein contained.
(e) Time Notices Deemed Given. All notices given by mail, as above
provided, shall be deemed to have been given as at the time of
mailing and all notices given by telegram shall be deemed to have
been given as at the sending time recorded by the telegraph
company transmitting the notices.
(f) Methods of Notice. It shall not be necessary that the same method
of giving notice be employed in respect of all directors, but one
permissible method may be employed in respect of any one or more,
and any other permissible method or methods may be employed in
respect of any other or others.
(g) Failure to Receive Notice. The period or limitation of time within
which any stockholder may exercise any option or right, or enjoy
any privilege or benefit, or be required to act, or within which
any Director may exercise any power or right, or enjoy any
privilege, pursuant to any notice sent him in the manner above
provided, shall not be affected or extended in any manner by the
failure of such stockholder or such Director to receive such
notice.
(h) Notice to Person with Whom Communication Is Unlawful. Whenever
notice is required to be given, under any provision of law or of
the Certificate of Incorporation or Bylaws of the Corporation, to
any person with whom communication is unlawful, the giving of such
notice to such person shall not be required and there shall be no
duty to apply to any governmental authority or agency for a
license or permit to give such notice to such person. Any action
or meeting which shall be taken or held without notice to any such
person with whom communication is unlawful shall have the same
force and effect as if such notice had been duly given. In the
event that the action taken by the Corporation is such as to
require the filing of a certificate under any provision of the
Delaware General Corporation Law, the certificate shall state, if
such is the fact and if notice is required, that notice was given
to all persons entitled to receive notice except such persons with
whom communication is unlawful.
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ARTICLE XIII
AMENDMENTS
Section 43. Amendments. Except as otherwise set forth in paragraph 41(i) hereof,
these Bylaws may be repealed, altered or amended or new Bylaws adopted by the
stockholders. In addition to any vote of the holders of any class or series of
stock of this Corporation required by law or by these Bylaws, the affirmative
vote of a majority of the voting power of all of the then-outstanding shares of
the capital stock of the Corporation entitled to vote generally in the election
of Directors, voting together as a single class, shall be required to adopt,
amend or repeal any provisions of the Bylaws of the Corporation. Except as
otherwise set forth in paragraph 41(i) hereof, the Board of Directors shall also
have the authority, if such authority is conferred upon the Board of Directors
by the Certificate of Incorporation, to repeal, alter or amend these Bylaws or
adopt new Bylaws (including, without limitation, the amendment of any Bylaw
setting forth the number of Directors who shall constitute the whole Board of
Directors) subject to the power of the stockholders to change or repeal such
Bylaws and provided that the Board of Directors shall not make or alter any
Bylaws fixing the qualifications, classifications, term of office or
compensation of Directors.