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Exhibit 3.1
AMENDED
&
RESTATED
BY-LAWS
OF
PLANTRONICS, INC.
A DELAWARE CORPORATION
[Effective as of May 16, 2001]
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TABLE OF CONTENTS
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ARTICLE 1. OFFICES.............................................................. 1
Section 1.1. Registered Office......................................... 1
Section 1.2. Other Offices............................................. 1
ARTICLE 2. MEETINGS OF STOCKHOLDERS............................................. 1
Section 2.1. Place and Time of Meetings................................ 1
Section 2.2. Special Meetings.......................................... 1
Section 2.3. Place of Meetings......................................... 2
Section 2.4. Notice.................................................... 2
Section 2.5. Stockholders List......................................... 2
Section 2.6. Quorum.................................................... 2
Section 2.7. Adjourned Meetings........................................ 3
Section 2.8. Vote Required............................................. 3
Section 2.9. Voting Rights............................................. 3
Section 2.10. Proxies................................................... 3
Section 2.11. Prohibitions on Action by Written Consent................. 3
Section 2.12. Advance Notice of Stockholder Nominations................. 4
Section 2.13. Advance Notice of Stockholder Business.................... 4
ARTICLE 3. DIRECTORS............................................................ 5
Section 3.1. General Powers............................................ 5
Section 3.2. Number, Election and Term of Office....................... 5
Section 3.3. Removal and Resignation................................... 5
Section 3.4. Vacancies................................................. 5
Section 3.5. Annual Meetings........................................... 6
Section 3.6. Other Meetings and Notice................................. 7
Section 3.7. Quorum, Required Vote and Adjournment..................... 7
Section 3.8. Committees................................................ 8
Section 3.9. Committee Rules........................................... 8
Section 3.10. Communications Equipment.................................. 9
Section 3.11. Waiver of Notice and Presumption of Assent................ 9
Section 3.12. Action by Written Consent................................. 9
ARTICLE 4. OFFICERS............................................................. 9
Section 4.1. Number.................................................... 9
Section 4.2. Election and Term of Office............................... 10
Section 4.3. Removal................................................... 10
Section 4.4. Vacancies................................................. 10
Section 4.5. Compensation.............................................. 10
Section 4.6. The President............................................. 10
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Section 4.7. Vice-Presidents........................................... 11
Section 4.8. The Secretary and Assistant Secretaries................... 11
Section 4.9. The Treasurer and Assistant Treasurer..................... 11
Section 4.10. Other Officers, Assistant Officers and Agents............. 12
Section 4.11. Absence or Disability of Officers......................... 12
ARTICLE 5. INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS.................... 12
Section 5.1. Nature of Indemnity....................................... 12
Section 5.2. Procedure for Indemnification of Directors and Officers... 12
Section 5.3. Article Not Exclusive..................................... 13
Section 5.4. Insurance................................................. 13
Section 5.5. Expenses.................................................. 13
Section 5.6. Employees and Agents...................................... 14
Section 5.7. Contract Rights........................................... 14
Section 5.8. Merger or Consolidation................................... 14
ARTICLE 6. CERTIFICATES OF STOCK................................................ 14
Section 6.1. Form...................................................... 14
Section 6.2. Lost Certificate.......................................... 15
Section 6.3. Fixing a Record Date for Stockholder Meetings............. 15
Section 6.4. Fixing a Record Date for Other Purposes................... 16
Section 6.5. Registered Stockholders................................... 16
Section 6.6. Subscriptions for Stock................................... 16
ARTICLE 7. GENERAL PROVISIONS................................................... 16
Section 7.1. Dividends................................................. 16
Section 7.2. Checks, Drafts or Orders.................................. 17
Section 7.3. Contracts................................................. 17
Section 7.4. Loans..................................................... 17
Section 7.5. Fiscal Year............................................... 17
Section 7.6. Voting Securities Owned By Corporation.................... 17
Section 7.7. Inspection of Books and Records........................... 17
Section 7.8. Section Headings.......................................... 18
Section 7.9. Inconsistent Provisions................................... 18
ARTICLE 8. AMENDMENTS........................................................... 18
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AMENDED AND RESTATED
BY-LAWS
OF
PLANTRONICS, INC.
A DELAWARE CORPORATION
ARTICLE 1.
OFFICES
Section 1.1. Registered Office. The registered office of the corporation
in the State of Delaware shall be located at 1209 Orange Street, Wilmington,
Delaware 19801, County of New Castle. The name of the corporation's registered
agent at such address shall be The Corporation Trust Company. The registered
office and/or registered agent of the corporation may be changed from time to
time by action of the board of directors.
Section 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 from time to time determine or the business of the corporation
may require.
ARTICLE 2.
MEETINGS OF STOCKHOLDERS
Section 2.1. Place and Time of Meetings. An annual meeting of the
stockholders shall be held each year within one hundred twenty (120) days after
the close of the immediately preceding fiscal year of the corporation for the
purpose of electing directors and conducting such other proper business as may
come before the meeting. The date, time and place of the annual meeting shall be
determined by the president of the corporation; provided, that if the president
does not act, the board of directors shall determine the date, time and place of
such meeting.
Section 2.2. Special Meetings
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Special meetings of stockholders may be called for any purpose and may
be held at such time and place, within or without the State of Delaware, as
shall be stated in a notice of meeting or in a duly executed waiver of notice
thereof. Such meetings may be called at any time by the board of directors, the
chairman of the board of directors, the president or the holders of twenty
percent (20%) or more of the outstanding Common Stock of the corporation. No
business may be conducted at a special meeting other than the business brought
before the meeting by the Board of Directors, the chairman of the board of
directors, the president or the holders of twenty percent (20%) or more of the
outstanding Common Stock of the corporation, as the case may be.
Section 2.3. Place of Meetings. The board of directors may designate any
place, either within or without the State of Delaware, as the place of meeting
for any annual meeting or for any special meeting called by the board of
directors. If no designation is made, or if a special meeting be otherwise
called, the place of meeting shall be the principal executive office of the
corporation.
Section 2.4. Notice. Whenever stockholders are required or permitted to
take action at a meeting, written or printed notice stating the place, date,
time, and, in the case of special meetings, the purpose or purposes, of such
meeting, shall be given to each stockholder entitled to vote at such meeting not
less than ten (10) nor more than sixty (60) days before the date of the meeting.
All such notices shall be delivered, either personally or by mail, by or at the
direction of the board of directors, the president or the secretary, and if
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail, postage prepaid, addressed to the stockholder at his, her or its
address as the same appears on the records of the corporation.
Section 2.5. Stockholders List. The officer having charge of the stock
ledger of the corporation shall make, at least 10 days before every meeting of
the stockholders, a complete list of the stockholders entitled to vote at such
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 so specified in the notice of the meeting or, if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 2.6. Quorum. The holders of the outstanding shares of capital
stock representing a majority of the voting power of the corporation, present in
person or represented by proxy, shall constitute a quorum at all
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meetings of the stockholders, except as otherwise provided by law or by the
certificate of incorporation. If a quorum is not present, the holders of the
shares representing a majority of the voting power present in person or
represented by proxy at the meeting, and entitled to vote at the meeting, may
adjourn the meeting to another time and/or place. When a specified item of
business requires a vote by a class or series (if the corporation shall then
have outstanding shares of more than one class or series) voting as a class, the
holders of a majority of the shares of such class or series shall constitute a
quorum (as to such class or series) for the transaction of such item of
business. When a quorum is once present to commence a meeting of stockholders,
it is not broken by the subsequent withdrawal of any stockholder or their
proxies.
Section 2.7. Adjourned Meetings. When a meeting is adjourned to another
time and place, notice need not be given of the adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record day is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each shareholder of record entitled to vote at the meeting.
Section 2.8. Vote Required. When a quorum is present, the affirmative
vote of the holders of the shares representing a majority of the voting power
present in person or represented by proxy at the meeting and entitled to vote on
the subject matter shall be the act of the stockholders, unless the question is
one upon which by express provisions of an applicable law or of the certificate
of incorporation a different vote is required, in which case such express
provision shall govern and control the decision of such question. Where a
separate vote by class may be required, the affirmative vote of the majority of
shares of such class present in person or represented by proxy at the meeting
shall be the act of such class.
Section 2.9. Voting Rights. Except as otherwise provided by the General
Corporation Law of the State of Delaware or by the certificate of incorporation
of the corporation or any amendments thereto and subject to Section 3 of Article
6 hereof, every stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of Common Stock held
by such stockholder.
Section 2.10. Proxies. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for him or her by
proxy, but no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period.
Section 2.11. Prohibitions on Action by Written Consent
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Unless otherwise provided in the certificate of incorporation, no action may be
taken by the stockholders of the corporation pursuant to a written consent in
lieu of an annual or special meeting of the stockholders of the corporation.
Section 2.12. Advance Notice of Stockholder Nominations. Nominations of
persons for election to the board of directors of the corporation may be made at
a meeting of stockholders by or at the direction of the board of directors or by
any stockholder of the corporation entitled to vote in the election of directors
at the meeting who complies with the notice procedures set forth in this
Section. Such nominations, other than those made by or at the direction of the
board of directors, shall be made pursuant to timely 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 not less than twenty (20) days prior to the meeting; provided,
however, that in the event less than thirty (30) days' notice or prior public
disclosure of the date of the meeting is given or made to stockholders, notice
by the stockholder to be timely must be so received not later than the close of
business on the tenth day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. Such stockholder's
notice shall set forth (a) as to each person, if any, 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 class and number of shares of
the corporation which are beneficially owned by such person, (iv) any other
information relating to such person that is required by law to be disclosed in
solicitations of proxies for election of directors, and (v) such person's
written consent to being named as a nominee and to serving as a director if
elected; 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, (ii)
the class and number of shares of the corporation which are beneficially owned
by such stockholder, and (iii) a description of all arrangements or
understandings between such stockholder and each nominee and any other person or
persons (naming such person or persons) relating to the nomination. At the
request of the board of directors any person nominated by the board of directors
for election as a director shall furnish to the Secretary of the corporation
that information required to be set forth in the stockholder's notice of
nomination which pertains to the nominee. No person shall be eligible for
election as a director of the corporation unless nominated in accordance with
the procedures set forth in this Section. The chairman of the meeting shall, if
the facts warrant, determine and declare at the meeting that a nomination was
not made in accordance with the procedures prescribed by these bylaws, and if he
should so determine, he shall so declare at the meeting and the defective
nomination shall be disregarded.
Section 2.13. Advance Notice of Stockholder Business. At the annual
meeting of the stockholders, only such business shall be conducted as shall have
been properly brought before the meeting. To be properly brought before an
annual meeting, business must be: (a) as specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the board of directors,
(b) otherwise properly brought before the meeting by or at the
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direction of the board of directors, or (c) otherwise properly brought before
the meeting by a stockholder. Business to be brought before the meeting by a
stockholder shall not be considered properly brought if the stockholder has not
given timely notice thereof in writing to the Secretary of the corporation. To
be timely, a stockholder's notice must be delivered to the principal executive
offices of the corporation not less than forty five (45) days prior to the date
on which the corporation first mailed proxy materials for the prior year's
annual meeting; provided, however, that if the corporation's annual meeting of
stockholders occurs on a date more than thirty (30) days earlier or later than
the corporation's prior year's annual meeting, then the corporation's board of
directors shall determine a date a reasonable period prior to the corporation's
annual meeting of stockholders by which date the stockholders notice must be
delivered and publicize such date in a filing pursuant to the Securities
Exchange Act of 1934, as amended, or via press release. Such publication shall
occur at least ten (10) days prior to the date set by the Board of Directors. A
stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting: (i) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii) the name and address of
the stockholder proposing such business, (iii) the class and number of shares of
the corporation, which are beneficially owned by the stockholder, (iv) any
material interest of the stockholder in such business, and (v) any other
information that is required by law to be provided by the stockholder in his
capacity as proponent of a stockholder proposal. Notwithstanding anything in
these bylaws to the contrary, no business shall be conducted at any annual
meeting except in accordance with the procedures set forth in this Section. The
chairman of the annual meeting shall, if the facts warrant, determine and
declare at the meeting that business was not properly brought before the meeting
and in accordance with the provisions of this Section, and, if he should so
determine, he shall so declare at the meeting that any such business not
properly brought before the meeting shall not be transacted.
ARTICLE 3.
DIRECTORS
Section 3.1. General Powers. The business and affairs of the corporation
shall be managed by or under the direction of the board of directors.
Section 3.2. Number, Election and Term of Office. The authorized number
of directors constituting the board of directors shall be nine (9). This number
may be changed by an amendment to these by-laws adopted by (a) the vote of
66-2/3% of the outstanding Common Stock of the corporation or (b) by a
resolution of the board of directors adopted by the affirmative vote of at least
66-2/3% of such authorized number of directors. No reduction of the authorized
number of directors shall have the effect of removing any director before that
director's term expires. The directors shall be elected by a plurality of the
votes of the shares present in person or represented by proxy at the meeting and
entitled to vote in the election of directors. The directors shall be elected in
this manner at the annual meeting of the stockholders, except as provided in
Section 4 of this Article 3. Each director elected shall hold office until a
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successor is duly elected and qualified or until his or her earlier death,
resignation or removal as hereinafter provided.
Section 3.3. Removal and Resignation. Any director or the entire board
of directors may be removed at any time, with or without cause, by the holders
of the shares representing a majority of the voting power of the corporation
then entitled to vote at an election of directors. Whenever the holders of any
class or series are entitled to elect one or more directors by the provisions of
the corporation's certificate of incorporation, the provisions of this section
shall apply, in respect to the removal without cause of a director or directors
so elected, to the vote of the holders of the outstanding shares of that class
or series and not to the vote of the outstanding shares as whole. Any director
may resign at any time upon written notice to the corporation.
Section 3.4. Vacancies.
(a) Vacancies in the unexpired term of any directorship shall be
filled as follows:
(i)If such vacancy has resulted from the death, resignation or
removal of a director that was designated by Citicorp Venture Capital, Ltd.
("CVC") to serve on the Board of Directors pursuant to the terms of that certain
Board Designation Agreement between the Company and CVC (a "CVC Designee"), such
vacancy shall be filled by a majority of the remaining CVC Designees then in
office, though such directors may constitute less than a quorum; or
(ii) If such vacancy has resulted from the death, resignation or
removal of a director that is not a CVC Designee, such vacancy shall be filled
by a majority of those remaining directors then in office that are neither (x) a
CVC Designee or (y) the Chief Executive Officer of the corporation, though such
directors may constitute less than a quorum; provided, however, that if the
Chief Executive Officer of the corporation is the sole remaining director that
is not a CVC Designee, the Chief Executive Officer shall fill any such vacancy.
(b) Newly created directorships resulting from any increase in the
authorized number of directors shall be filled by a majority of the directors
then in office.
(c) Each director so chosen shall hold office until a successor is
duly elected and qualified or until his or her earlier death, resignation or
removal as herein provided.
Section 3.5. Annual Meetings. The annual meeting of each newly elected
board of directors shall be held without other notice than this by-law
immediately after, and at the same place as, the annual meeting of stockholders.
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Section 3.6. Other Meetings and Notice. Regular meetings, other than the
annual meeting, of the board of directors may be held without notice at such
time and at such place as shall from time to time be determined by resolution of
the board. Special meetings of the board of directors may be called by or at the
request of the president on at least 24 hours notice to each director, either
personally, by telephone, by mail or by telegraph; special meetings shall be
called by the president or the secretary in like manner and on like notice on
written request of two (2) directors unless the board consists of only one (1)
director at such time.
Section 3.7. Quorum, Required Vote and Adjournment.
(a) A majority of the total number of directors shall constitute a
quorum for the transaction of business. Except as otherwise set forth in clause
(b), the vote of a majority of directors present at a meeting at which a quorum
is present shall be the act of the board of directors. If a quorum shall not be
present at any meeting of the board of directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
(b) The affirmative vote of at least 66 2/3% of the directors then
in office shall be required to adopt a resolution necessary to:
(i)amend, alter or repeal any provisions of the certificate of
incorporation or by-laws of the corporation;
(ii) sell, lease or convey all or substantially all of the
property or business of the corporation or permit any Subsidiary to sell, lease
or convey all or substantially all of the property or business of such
Subsidiary (other than to the corporation or another Subsidiary in a
consolidation or merger in which the corporation is the surviving person) or
permit any Subsidiary to consolidate or merge with any other corporation (other
than the corporation or a Subsidiary in a consolidation or merger in which the
corporation or such Subsidiary is the surviving person), or voluntarily
liquidate, dissolve or wind up the corporation;
(iii) issue or sell, or agree to issue or sell, or permit any
Subsidiary to issue or sell, its capital stock or any securities consisting of
or containing any options or rights to acquire any shares of capital stock or
any securities convertible or exchangeable or exercisable for any of its capital
stock, other than any issuance of capital stock (A) pursuant to any stock split
or dividend effected by the corporation on a pro-rata basis to all stockholders,
(B) pursuant to a dividend on shares of Common Stock that is paid in shares of
capital stock of the corporation on a pro-rata basis to all stockholders or (C)
upon the exercise of rights or options under the 1993 Option Plan.
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(iv) enter into any stock option plan, other than the 1993 Stock
Option Plan dated as of September 25, 1993 or amend any stock option plan to
increase the number of shares issuable thereunder; or
(v)acquire the business or assets of, or enter into any joint
venture or partnership with, any Person (except the corporation may acquire the
business or assets of, or enter into any joint venture or partnership with, any
Subsidiary) or permit any Subsidiary to acquire the business or assets of, or
enter into any joint venture or partnership with, any Person (except any
Subsidiary may acquire the business or assets of any other Subsidiary or enter
into any joint venture or partnership with the Corporation or any other
Subsidiary) if the aggregate amount of all expenditures incurred by the
corporation (on a consolidated basis) in its then current fiscal year in
connection with acquisitions or investments in joint ventures or partnerships
would, after giving effect to expenditures to be incurred by the corporation (on
a consolidated basis) in such fiscal year in connection with such proposed
acquisition or investment in joint venture or partnership, exceed $10 million.
For purposes of this clause (b), the following terms shall have the
following respective meanings:
"Person" shall mean and include an individual, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization and a government
or any department or agency thereof.
"Subsidiary" shall mean any corporation, at least a majority of the
total combined voting power of all classes of stock having general voting power
of which shall, at the time as of which any determination is being made, be
owned by the corporation either directly or through one or more Subsidiaries.
Section 3.8. Committees. Subject to the voting requirements set forth in
Article 3, the board of directors may, by resolution passed by a majority of the
whole board, designate one or more committees, each committee to consist of one
or more of the directors of the corporation, which to the extent provided in
such resolution or these by-laws shall have and may exercise the powers of the
board of directors in the management and affairs of the corporation except as
otherwise limited by law. 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. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the board of directors. Each committee shall keep
regular minutes of its meetings and report the same to the board of directors
when required.
Section 3.9. Committee Rules. Each committee of the board of directors
may fix its own rules of procedure and shall hold its meetings as provided by
such rules, except as may otherwise be provided by a resolution of the
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board of directors designating such committee. Unless otherwise provided in such
a resolution, the presence of at least a majority of the members of the
committee shall be necessary to constitute a quorum. In the event that a member
and that member's alternate, if alternates are designated by the board of
directors as provided in Section 8 of this Article 3, of such committee is or
are absent or disqualified, the member or members thereof present at any meeting
and not disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another member of the board of
directors to act at the meeting in place of any such absent or disqualified
member.
Section 3.10. Communications Equipment. Members of the board of
directors or any committee thereof may participate in and act at any meeting of
such board or committee through the use of a conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in the meeting pursuant to this
section shall constitute presence in person at the meeting.
Section 3.11. Waiver of Notice and Presumption of Assent. Any member of
the board of directors or any committee thereof who is present at a meeting
shall be conclusively presumed to have waived notice of such meeting except when
such member attends 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. Such member shall be conclusively presumed to have assented
to any action taken unless his or her dissent shall be entered in the minutes of
the meeting or unless his or her written dissent to such action shall be filed
with the person acting as the secretary of the meeting before the adjournment
thereof or shall be forwarded by registered mail to the secretary of the
corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to any member who voted in favor of such action.
Section 3.12. Action by Written Consent. Unless otherwise restricted by
the certificate of incorporation, 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 or committee, as the case
may be consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the board or committee.
ARTICLE 4.
OFFICERS
Section 4.1. Number. The officers of the corporation shall be elected by
the board of directors and shall consist of a president, one or more
vice-presidents, a secretary, a treasurer, and such other offices and assistant
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officers as may be deemed necessary or desirable by the board of directors. Any
number of offices may be held by the same person. In its discretion, the board
of directors may choose not to fill any office for any period as it may deem
advisable, except that the offices of president and secretary shall be filled as
expeditiously as possible.
Section 4.2. Election and Term of Office. The officers of the
corporation shall be elected annually by the board of directors at its first
meeting held after each annual meeting of stockholders or as soon thereafter as
conveniently may be. Vacancies may be filled or new offices created and filled
at any meeting of the board of directors. Each officer shall hold office until a
successor is duly elected and qualified or until his or her earlier death,
resignation or removal as hereinafter provided.
Section 4.3. Removal. Any officer or agent elected by the board of
directors may be removed by the board of directors whenever in its judgment the
best interests of the corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
Section 4.4. Vacancies. Any vacancy occurring in any office because of
death, resignation, removal, disqualification or otherwise, may be filled by the
board of directors for the unexpired portion of the term by the board of
directors then in office.
Section 4.5. Compensation. Compensation of all officers shall be fixed
by the board of directors, and no officer shall be prevented from receiving such
compensation by virtue of his or her also being a director of the corporation.
Section 4.6. The President. The president shall be the chief executive
officer of the corporation; shall preside at all meetings of the stockholders
and board of directors at which he or she is present; subject to the powers of
the board of directors, shall have general charge of the business, affairs and
property of the corporation, and control over its officers, agents and
employees; and shall see that all orders and resolutions of the board of
directors are carried into effect. The president shall execute bonds, mortgages
and other contracts requiring a seal, under the seal of the corporation, except
where required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated by
the board of directors to some other officer or agent of the corporation. The
president shall have such other powers and perform such other duties as may be
prescribed by the board of directors or as may be provided in these by-laws.
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Section 4.7. Vice-Presidents. The vice-president, or if there shall be
more than one, the vice-presidents in the order determined by the board of
directors, shall, in the absence or disability of the president, act with all of
the powers and be subject to all the restrictions of the president. The
vice-presidents shall also perform such other duties and have such other powers
as the board of directors, the president or these by-laws, from time to time,
prescribe.
Section 4.8. The Secretary and Assistant Secretaries. The secretary
shall attend all meetings of the board of directors, all meetings of the
committees thereof and all meetings of the stockholders and record all the
proceedings of the meetings in a book or books to be kept for that purpose.
Under the president's supervision, the secretary shall give, or cause to be
given, all notices required to be given by these by-laws or by law; shall have
such powers and perform such duties as the board of directors, the president or
these by-laws may, from time to time, prescribe; and shall have custody of the
corporate seal of the corporation. The secretary, or an assistant secretary,
shall have authority to affix the corporate seal to any instrument requiring it
and when so affixed, it may be attested by his or her signature or by the
signature of 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 or her signature. The assistant secretary, or if
there be more than one, the assistant secretaries in the order determined by the
board of directors, shall, in the absence or disability of the secretary,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors, the
president, or secretary may, from time to time, prescribe.
Section 4.9. The Treasurer and Assistant Treasurer. The treasurer shall
have the custody of the corporate funds and securities; shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
corporation; shall deposit all monies and other valuable effects in the name and
to the credit of the corporation as may be ordered by the board of directors;
shall cause the funds of the corporation to be disbursed when such disbursements
have been duly authorized, 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 the corporation; shall
have such powers and perform such duties as the board of directors, the
president or these by-laws may, from time to time, prescribe. If required by the
board of directors, the treasurer shall give the corporation a bond (which shall
be rendered every six years) in such sums and with such surety or sureties as
shall be satisfactory to the board of directors for the faithful performance of
the duties of the office of treasurer and for the restoration to the
corporation, in case of death, resignation, retirement, or removal from office,
of all books, papers, vouchers, money, and other property of whatever kind in
the possession or under the control of the treasurer belonging to the
corporation. The assistant treasurer, or if there shall be more than one, the
assistant treasurers in the order determined by the board of directors, shall in
the absence or disability of the treasurer, perform the duties and exercise the
powers of the treasurer.
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The assistant treasurers shall perform such other duties and have such other
powers as the board of directors, the president or treasurer may, from time to
time, prescribe.
Section 4.10. Other Officers, Assistant Officers and Agents. Officers,
assistant officers and agents, if any, other than those whose duties are
provided for in these by-laws, shall have such authority and perform such duties
as may from time to time be prescribed by resolution of the board of directors.
Section 4.11. Absence or Disability of Officers. In the case of the
absence or disability of any officer of the corporation and of any person hereby
authorized to act in such officer's place during such officer's absence or
disability, the board of directors may by resolution delegate the powers and
duties of such officer to any other officer or to any director, or to any other
person whom it may select.
ARTICLE 5.
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
Section 5.1. Nature of Indemnity. Each person who was or is made a party
or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer,
of the corporation or is or was serving at the request of the corporation as a
director, officer, employee, fiduciary, or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, shall be indemnified and
held harmless by the corporation to the fullest extent which it is empowered to
do so by the General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the corporation to provide broader
indemnification rights than said law permitted the corporation to provide prior
to such amendment) against all expense, liability and loss (including attorneys'
fees actually and reasonably incurred by such person in connection with such
proceeding and such indemnification shall inure to the benefit of his or her
heirs, executors and administrators; provided, however, that, except as provided
in Section 2 hereof, the corporation shall indemnify any such person seeking
indemnification in connection with a proceeding initiated by such person only if
such proceeding was authorized by the board of directors of the corporation. The
right to indemnification conferred in this Article 5 shall be a contract right
and, subject to Sections 2 and 5 hereof, shall include the right to be paid by
the corporation the expenses incurred in defending any such proceeding in
advance of its final disposition. The corporation may, by action of its board of
directors, provide indemnification to employees and agents of the corporation
with the same scope and effect as the foregoing indemnification of directors and
officers.
Section 5.2. Procedure for Indemnification of Directors and Officers.
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Any indemnification of a director or officer of the corporation under Section 1
of this Article 5 or advance of expenses under Section 5 of this Article 5 shall
be made promptly, and in any event within thirty (30) days, upon the written
request of the director or officer. If a determination by the corporation that
the director or officer is entitled to indemnification pursuant to this Article
5 is required, and the corporation fails to respond within sixty (60) days to a
written request for indemnity, the corporation denies a written request for
indemnification or advancing of expenses, in whole or in part, of if payment in
full pursuant to such request is not made within thirty (30) days, the right to
indemnification or advances as granted by this Article 5 shall be enforceable by
the director or officer in any court of competent jurisdiction. Such person's
costs and expenses incurred in connection with successfully establishing his or
her right to indemnification, in whole or in part, in any such action shall also
be indemnified by the corporation. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any, has been tendered to the corporation) that the claimant has
not met the standards of conduct which make it permissible under the General
Corporation Law of the State of Delaware for the corporation to indemnify the
claimant for the amount claimed, but the burden of such defense shall be on the
corporation. Neither the failure of the corporation (including its board of
directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the General Corporation Law of the
State of Delaware, 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 the claimant has not met the applicable
standard of conduct.
Section 5.3. Article Not Exclusive. The rights to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Article 5 shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of the certificate of incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 5.4. Insurance. The corporation may purchase and maintain
insurance on its own behalf and on behalf of any person who is or was a
director, officer, employee, fiduciary, or agent of the corporation or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him or her and incurred by him
or her in any such capacity, whether or not the corporation would have the power
to indemnify such person against such liability under this Article 5.
Section 5.5. Expenses.
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Expenses incurred by any person described in Section 1 of this Article 5 in
defending a proceeding shall be paid by the corporation in advance of such
proceeding's final disposition upon receipt of an undertaking by or on behalf of
the director or officer to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the corporation.
Such expenses incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the board of directors deems appropriate.
Section 5.6. Employees and Agents. Persons who are not covered by the
foregoing provisions of this Article 5 and who are or were employees or agents
of the corporation, or who are or were serving at the request of the corporation
as employees or agents of another corporation, partnership, joint venture, trust
or other enterprise, may be indemnified to the extent authorized at any time or
from time to time by the board of directors.
Section 5.7. Contract Rights. The provisions of this Article 5 shall be
deemed to be a contract right between the corporation and each director or
officer who serves in any such capacity at any time while this Article 5 and the
relevant provisions of the General Corporation Law of the State of Delaware or
other applicable law are in effect, and any repeal or modification of this
Article 5 or any such law shall not affect any rights or obligations then
existing with respect to any state of facts or proceeding then existing.
Section 5.8. Merger or Consolidation. For purposes of this Article 5,
references to "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 this Article 5
with respect to the resulting or surviving corporation as he or she would have
with respect to such constituent corporation if its separate existence had
continued.
ARTICLE 6.
CERTIFICATES OF STOCK
Section 6.1. Form. 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 president or a vice-president and the secretary or an assistant secretary of
the corporation, certifying the number of shares owned by such holder in the
corporation.
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If such a certificate is countersigned (1) by a transfer agent or an assistant
transfer agent other than the corporation or its employee or (2) by a registrar,
other than the corporation or its employee, the signature of any such president,
vice-president, secretary or assistant secretary may be facsimiles. In case any
officer or officers who have signed, or whose facsimile signature or signatures
have been used on, any such certificate or certificates shall cease to be such
officer or officers of the corporation whether because of death, resignation or
otherwise before such certificate or certificates have been delivered by the
corporation, such certificate or certificates may nevertheless be issued and
delivered as though the person or persons who signed such certificate of
certificates or whose facsimile signature or signatures have been used thereon
had not ceased to be such officer or officers of the corporation. All
certificates for shares shall be consecutively numbered or otherwise identified.
The name of the person to whom the shares represented thereby are issued, with
the number of shares and date of issue, shall be entered on the books of the
corporation. Shares of stock of the corporation shall only be transferred on the
books of the corporation by the holder of record thereof or by such holder's
attorney duly authorized in writing, upon surrender to the corporation of the
certificate or certificates for such shares endorsed by the appropriate person
or persons, with such evidence of the authenticity of such endorsement,
transfer, authorization, and other matters as the corporation may reasonably
require, and accompanied by all necessary stock transfer stamps. In that event,
it shall be the duty of the corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate or certificates, and record the
transaction on its books. The board of directors may appoint a bank or trust
company organized under the laws of the United States or any state thereof to
act as its transfer agent or registrar, or both in connection with the transfer
of any class or series of securities of the corporation.
Section 6.2. Lost Certificate. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates previously 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. When
authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen, or destroyed certificate or
certificates, or his or her legal representative, to give the corporation a bond
sufficient to indemnify the corporation against any claim that may be made
against the corporation on account of the loss, theft or destruction of any such
certificate or the issuance of such new certificate.
Section 6.3. Fixing a Record Date for Stockholder Meetings. 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 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
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stockholders shall be the close of business on the next day 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 adjournment
meeting.
Section 6.4. Fixing a Record Date for Other Purposes. In order that the
corporation may determine the stockholders entitled to receive payment of any
dividend or other distribution or allotment or any rights or the stockholders
entitled to exercise any rights in respect of any change, conversion or exchange
of stock, or for the purposes of any other lawful action, the board of directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted, and which record date shall be
not more than sixty (60) days prior to written 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 6.5. Registered Stockholders. Prior to the surrender to the
corporation of the certificate or certificates for a share or shares of stock
with a request to record the transfer of such share or shares, the corporation
may treat the registered owner as the person entitled to receive dividends, to
vote, to receive notifications, and otherwise to exercise all the rights and
powers of an owner.
Section 6.6. Subscriptions for Stock. Unless otherwise provided for in
the subscription agreement, subscriptions for shares all be paid in full at such
time, or in such installments and at such times, as shall be determined by the
board of directors. Any call made by the board of directors for payment on
subscriptions shall be uniform as to all shares of the same class or as to all
shares of the same series. In case of default in the payment of any installment
or call when such payment is due, the corporation may proceed to collect the
amount due in the same manner as any debt due the corporation.
ARTICLE 7.
GENERAL PROVISIONS
Section 7.1. 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 at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation. 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
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to
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meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the corporation, or any other purpose and the directors may
modify or abolish any such reserve in the manner in which it was created.
Section 7.2. Checks, Drafts or Orders. All checks, drafts, or other
orders for the payment of money by or to the corporation and all notes and other
evidences of indebtedness issued in the name of the corporation shall be signed
by such officer or officers, agent or agents of the corporation, and in such
manner, as shall be determined by resolution of the board of directors or a duly
authorized committee thereof.
Section 7.3. Contracts. The board of directors may authorize any officer
or officers, or any agent or agents, of the corporation to enter into any
contract or to execute and deliver any instrument in the name of and on behalf
of the corporation, and such authority may be general or confined to specific
instances.
Section 7.4. Loans. The corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the
corporation or of its subsidiary, including any officer or employee who is a
director of the corporation or its subsidiary, whenever, in the judgment of the
directors, such loan, guaranty or assistance may reasonably be expected to
benefit the corporation. The loan, guaranty or other assistance may be with or
without interest, and may be unsecured, or secured in such manner as the board
of directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing in this section contained shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the corporation at
common law or under any statute. No loans shall be made or contracted on behalf
of the corporation and no evidences of indebtedness shall be issued in its name
unless authorized by resolution of the board of directors. Such authority may be
general or confined to specific instances.
Section 7.5. Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the board of directors.
Section 7.6. Voting Securities Owned By Corporation. Voting securities
in any other corporation held by the corporation shall be voted by the president
or the secretary, unless the board of directors specifically confers authority
to vote with respect there to, which authority may be general or confined to
specific instances, upon some other person or officer. Any person authorized to
vote securities shall have the power to appoint proxies, with general power of
substitution.
Section 7.7. Inspection of Books and Records.
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Any stockholder of record, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right during the
usual hours for business to inspect for any proper purpose the corporation's
stock ledger, a list of its stockholders, and its other books and records, and
to make copies or extracts therefrom. A proper purpose shall mean any purpose
reasonably related to such person's interest as a stockholder. In every instance
where an attorney or other agent shall be the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing which authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in the State of Delaware or at its
principal place of business.
Section 7.8. Section Headings. Section headings in these by-laws are for
convenience of reference only and shall not be given any substantive effect in
limiting or otherwise construing any provision herein.
Section 7.9. Inconsistent Provisions. In the event that any provision of
these by-laws is or becomes inconsistent with any provision of the certificate
of incorporation, the General Corporation Law of the State of Delaware or any
other applicable law, the provision of these by-laws shall not be given any
effect to the extent of such inconsistency but shall otherwise be given full
force and effect.
ARTICLE 8.
AMENDMENTS
Except as set forth in the next sentence, these by-laws may be amended,
altered, or repealed and new by-laws adopted at any meeting of the board of
directors by a majority vote. The provisions set forth in Article 3, Section 2,
Article 3, Section 7(b) and this Article 8 may only be amended, altered or
repealed upon the affirmative of at least 66 2/3% of the directors then in
office. The fact that the power to adopt, amend, alter, or repeal the by-laws
has been conferred upon the board of directors shall not divest the stockholders
of the same powers.
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