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EXHIBIT 3(ii)
BYLAWS
OF
APPLIED MATERIALS, INC.
(a Delaware corporation)
(As amended to December 13, 1996)
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BYLAWS OF
APPLIED MATERIALS, INC.
Table of Contents
Page
ARTICLE I OFFICES.................................................. 1
1.1 Registered Office............................................ 1
1.2 Other Offices................................................ 1
ARTICLE II STOCKHOLDERS............................................. 1
2.1 Place of Meetings............................................ 1
2.2 Annual Meeting............................................... 1
2.3 Special Meeting.............................................. 1
2.4 Notice of Stockholders' Meetings............................. 2
2.5 Advance Notice of Stockholder Nominees....................... 2
2.6 Manner of Giving Notice; Affidavit of Notice................. 3
2.7 Quorum....................................................... 3
2.8 Adjourned Meeting; Notice.................................... 3
2.9 Conduct of Business.......................................... 3
2.10 Voting....................................................... 3
2.11 Waiver of Notice............................................. 4
2.12 Record Date for Stockholder Notice; Voting; Giving
Consents................................................ 4
2.13 Proxies..................................................... 4
ARTICLE III DIRECTORS................................................ 5
3.1 Powers....................................................... 5
3.2 Number of Directors.......................................... 5
3.3 Election, Qualification and Term of Office of
Directors............................................... 5
3.4 Resignation and Vacancies.................................... 5
3.5 Place of Meetings; Meetings by Telephone..................... 6
3.6 Regular Meetings............................................. 7
3.7 Special Meetings; Notice..................................... 7
3.8 Quorum....................................................... 7
3.9 Waiver of Notice............................................. 8
3.10 Board Action by Written Consent Without a Meeting............ 8
3.11 Fees and Compensation of Directors........................... 8
3.12 Approval of Loans to Officers................................ 8
3.13 Removal of Directors......................................... 8
3.14 Chairman of the Board of Directors........................... 9
ARTICLE IV COMMITTEES............................................... 9
4.1 Committees of Directors...................................... 9
4.2 Committee Minutes............................................ 10
4.3 Meetings and Action of Committees............................ 10
ARTICLE V OFFICERS................................................. 10
5.1 Officers..................................................... 10
5.2 Election of Officers......................................... 10
5.3 Appointed Officers........................................... 10
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Page
5.4 Removal and Resignation of Officers.......................... 11
5.5 Vacancies in Offices......................................... 11
5.6 Chairman of the Board........................................ 11
5.7 President.................................................... 11
5.8 Senior Vice Presidents and Vice Presidents................... 11
5.9 Secretary.................................................... 12
5.10 Chief Financial Officer...................................... 12
5.11 Representation of Shares of Other Corporations............... 13
5.12 Authority and Duties of Officers............................. 13
ARTICLE VI RECORDS AND REPORTS...................................... 13
6.1 Maintenance and Inspection of Records........................ 13
6.2 Inspection by Directors...................................... 13
ARTICLE VII GENERAL MATTERS.......................................... 14
7.1 Execution of Corporate Contracts and Instruments............. 14
7.2 Stock Certificates; Partly Paid Shares....................... 14
7.3 Special Designation on Certificates.......................... 15
7.4 Lost Certificates............................................ 15
7.5 Construction; Definitions.................................... 15
7.6 Dividends.................................................... 15
7.7 Fiscal Year.................................................. 16
7.8 Seal......................................................... 16
ARTICLE VIII AMENDMENTS............................................... 16
8.1 Amendments................................................... 16
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BYLAWS
OF
APPLIED MATERIALS, INC.
ARTICLE I
OFFICES
1.1 Registered Office. The registered office of the corporation in the
State of Delaware shall be Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of the registered agent of
the corporation at such location is The Corporation Trust Company.
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 II
STOCKHOLDERS
2.1 Place of Meetings. Meetings of stockholders shall be held at such
place, either, within or without the State of Delaware, as may be designated by
the board of directors. In the absence of any such designation, stockholders'
meetings shall be held at the corporation's principal executive offices.
2.2 Annual Meeting. The annual meeting of stockholders shall be held
each year on a date and at a time designated by the board of directors. At the
meeting, directors shall be elected and any other proper business may be
transacted.
2.3 Special Meeting. Special meetings of the stockholders may be called
at any time by the board of directors, or by the chairman of the board, or by
the president of the corporation.
If a special meeting is called by any person or persons other than the
board of directors, the request shall be in writing, specifying the time of such
meeting and the general nature of the business proposed to be transacted, and
shall be delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission to the chairman of the board, the president, any
vice president, or the secretary of the
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corporation. No business may be transacted at such special meeting otherwise
than specified in such notice. The officer receiving the request shall cause
notice to be promptly given to the stockholders entitled to vote, in accordance
with the provisions of Sections 4 and 5 of this Article II, that a meeting will
be held at the time requested by the person or persons calling the meeting, not
less than 35 nor more than 60 days after the receipt of the request. If the
notice is not given within 20 days after the receipt of the request, the person
or persons requesting the meeting may give the notice. Nothing contained in this
paragraph of this Section 3 shall be construed as limiting, fixing, or affecting
the time when a meeting of stockholders called by action of the board of
directors may be held.
2.4 Notice of Stockholders' Meetings. All notices of meetings with
stockholders shall be in writing and shall be sent or otherwise given in
accordance with Section 2.5 of these bylaws not less than 10 nor more than 60
days before the date of the meeting to each stockholder entitled to vote at such
meeting. The notice shall specify the place, date, and hour of the meeting, and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called.
2.5 Advance Notice of Stockholder Nominees. No nominations for director
of the corporation by any person other than the board of directors shall be
presented to any meeting of stockholders unless the person making the nomination
is a record stockholder and shall have delivered a written notice to the
secretary of the corporation no later than the close of business 60 days in
advance of the stockholder meeting or l0 days after the date on which notice of
the meeting is first given to the stockholders, whichever is later. Such notice
shall (i) set forth the name and address of the person advancing such nomination
and the nominee, together with such information concerning the person making the
nomination and the nominee as would be required by the appropriate Rules and
Regulations of the Securities and Exchange Commission to be included in a proxy
statement soliciting proxies for the election of such nominee, and (ii) shall
include the duly executed written consent of such nominee to serve as director
if elected.
No proposal by any person other than the board of directors shall be
submitted for the approval of the stockholders at any regular or special meeting
of the stockholders of the corporation unless the person advancing such proposal
shall have delivered a written notice to the secretary of the corporation no
later than the close of business 60 days in advance of the stockholder meeting
or l0 days after the date on which notice of the meeting is first given to the
stockholders, whichever is later. Such notice shall set forth the name and
address of the person advancing the proposal, any material interest of such
person in the proposal, and such other information concerning the person making
such proposal and the proposal itself as would be
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required by the appropriate Rules and Regulations of the Securities and Exchange
Commission to be included in a proxy statement soliciting proxies for the
proposal.
2.6 Manner of Giving Notice; Affidavit of Notice. Written notice of any
meeting of stockholders, if mailed, is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the corporation. An affidavit of the secretary or an assistant
secretary or of the transfer agent of the corporation that the notice has been
given shall, in the absence of fraud, be prima facie evidence of the facts
stated therein.
2.7 Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. Except as otherwise required by law, the
certificate of incorporation or these bylaws, the affirmative vote of the
majority of such quorum shall be deemed the act of the stockholders. If,
however, such quorum is not present or represented at any meeting of the
stockholders, then either (i) the chairman of the meeting or (ii) the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum is present or
represented. At such adjourned meeting at which a quorum is present or
represented, any business may be transacted that might have been transacted at
the meeting as originally noticed.
2.8 Adjourned Meeting; Notice. 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 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.
2.9 Conduct of Business. The chairman of any meeting of stockholders
shall determine the order of business and the procedure at the meeting,
including such regulation of the manner of voting and the conduct of business.
2.10 Voting. Except as may be otherwise provided in the certificate of
incorporation, each stockholder shall be entitled to one vote for each share of
capital stock held by such stockholder. Voting may be by voice or by ballot as
the presiding officer of the meeting of the stockholders shall
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determine. On a vote by ballot, each ballot shall be signed by the stockholder
voting, or by such stockholder's proxy, and shall state the number of shares
voted.
2.11 Waiver of Notice. Whenever notice is required to be given under
any provision of the General Corporation Law of Delaware or of the certificate
of incorporation or these bylaws, a written waiver thereof, signed by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders need be specified in any written
waiver of notice unless so required by the certificate of incorporation or these
bylaws.
2.12 Record Date for Stockholder Notice; Voting; Giving Consents. 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, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or 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 shall not be
more than 60 nor less than 10 days before the date of such meeting, nor more
than 60 days prior to any other action.
If the board of directors does not so fix a record date:
(i) 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.
(ii) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the board
of directors adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
2.13 Proxies. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for him by a written
proxy, signed by the stockholder and
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filed with the secretary of the corporation, but no such proxy shall be voted or
acted upon after one year from its date, unless the proxy provides for a longer
period. A proxy shall be deemed signed if the stockholder's name is placed on
the proxy (whether by manual signature, typewriting, telegraphic transmission or
otherwise) by the stockholder or the stockholder's attorney-in-fact. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the corporation generally.
ARTICLE III
DIRECTORS
3.1 Powers. Subject to the provisions of the General Corporation Law of
Delaware and any limitations in the certificate of incorporation or these bylaws
relating to action required to be approved by the stockholders, the business and
affairs of the corporation shall be managed and all corporate powers shall be
exercised by or under the direction of the board of directors.
3.2 Number of Directors. The board of directors shall consist of eleven
persons until changed by a proper amendment of this Section 3.2.
No reduction of the authorized number of directors shall have the
effect of removing any director before that director's term of office expires.
3.3 Election, Qualification and Term of Office of Directors. Except as
provided in Section 3.4 of these bylaws, directors shall be elected at each
annual meeting of stockholders. Directors need not be stockholders. Each
director, including a director elected to fill a vacancy, shall hold office
until his successor is elected and qualified or until his earlier resignation or
removal.
Elections of directors need not be by written ballot.
3.4 Resignation and Vacancies. Any director may resign at any time upon
written notice to the attention of the secretary of the corporation. When one or
more directors so resigns and the resignation is 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
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office as provided in this section in the filling of other vacancies.
Vacancies and newly created directorships resulting from any increase
in the authorized number of directors elected by all of the stockholders having
the right to vote as a single class may be filled by a majority of the directors
then in office, although less than a quorum, or by a sole remaining director.
Whenever the holders of any class or classes of stock or series thereof
are entitled to elect one or more directors by the provisions of the certificate
of incorporation, vacancies and newly created directorships of such class or
classes or series may be filled by a majority of the directors elected by such
class or classes or series thereof then in office, or by a sole remaining
director so elected.
If at any time, by reason of death or resignation or other cause, the
corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a stockholder,
or other fiduciary entrusted with like responsibility for the person or estate
of a stockholder, may call a special meeting of stockholders in accordance with
the provisions of the certificate of incorporation or these bylaws, or may apply
to the Court of Chancery for a decree summarily ordering an election as provided
in Section 211 of the General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority of
the whole board (as constituted immediately prior to any such increase), then
the Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent (10%) of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office as aforesaid,
which election shall be governed by the provisions of Section 211 of the General
Corporation Law of Delaware as far as applicable.
The stockholders may elect a director at any time to fill any vacancy
not filled by the directors.
If a vacancy is the result of action taken by the shareholders under
Section 3.13 of these bylaws, then the vacancy shall be filled by the holders of
a majority of the shares then entitled to vote at an election of directors.
3.5 Place of Meetings; Meetings by Telephone. The board of directors of
the corporation may hold meetings, both regular and special, either within or
outside the State of Delaware.
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Members of the board of directors, or any committee designated by the
board of directors, may participate in a meeting of the board of directors, or
any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this bylaw shall
constitute presence in person at the meeting.
3.6 Regular Meetings. Regular meetings 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 the board.
3.7 Special Meetings; Notice. Special meetings of the board of
directors for any purpose or purposes may be called at any time by the chairman
of the board, the president, any vice president, the secretary or any two
directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
telegram, charges prepaid, addressed to each director at that director's address
as it is shown on the records of the corporation. If the notice is mailed, it
shall be deposited in the United States mail at least four days before the time
of the holding of the meeting. If the notice is delivered personally or by
telephone or by telegram, it shall be delivered personally or by telephone or to
the telegraph company at least 48 hours before the time of the holding of the
meeting. Any oral notice given personally or by telephone may be communicated
either to the director or to a person at the office of the director who the
person giving the notice has reason to believe will promptly communicate it to
the director. The notice need not specify the purpose or the place of the
meeting, if the meeting is to be held at the principal executive office of the
corporation.
3.8 Quorum. At all meetings of the board of directors, a majority of
the authorized number of directors shall constitute a quorum for the transaction
of business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the board of directors, except as
may be otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum is not present at any meeting of the board of
directors, then the directors present thereat may adjourn the meeting from time
to time, without notice other than the announcement at the meeting, until a
quorum is present.
A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for that
meeting.
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3.9 Waiver of Notice. Whenever notice is required to be given under
any provision of the General Corporation Law of Delaware or of the certificate
of incorporation or these bylaws, a written waiver thereof, signed by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the directors, or members of a committee of
directors, need be specified in any written waiver of notice unless so required
by the certificate of incorporation or these bylaws.
3.10 Board Action by Written Consent Without a Meeting. 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.
3.11 Fees and Compensation of Directors. The board of directors shall
have the authority to fix the compensation of directors.
3.12 Approval of Loans to Officers. The corporation may lend money to,
or guarantee any obligations of, or otherwise assist any officer or other
employee of the corporation or any of its subsidiaries, including any officer or
employee who is a director of the corporation or any of its subsidiaries,
whenever, in the judgment of the directors, such loan, guaranty or assistance,
or an employee benefit or employee financial assistance plan adopted by the
board of directors or any committee thereof authorizing any 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 a 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.
3.13 Removal of Directors. Any director or the entire board of
directors may be removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors.
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No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of such director's term
of office.
3.14 Chairman of the Board of Directors. The corporation may also have,
at the discretion of the board of directors, a chairman of the board of
directors who may be considered an officer of the corporation.
ARTICLE IV
COMMITTEES
4.1 Committees of Directors. 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. The
board 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. In the absence or disqualification of a member of a committee, the
member or members present at any meeting and not disqualified from voting,
whether or not 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. Any such committee, to the extent provided in the
resolution of the board of directors, or in the bylaws of the corporation, shall
have and may exercise all the powers and authority of the board of directors in
the management of the business and affairs of the corporation, and may authorize
the seal of the corporation to be affixed to all papers which may require it;
but no such committee shall have the power or authority in reference to amending
the certificate of incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the board of directors as provided in Section 151(a) of the
General Corporation Law of Delaware, fix the designations and any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
corporation, or fix the number of shares of any series of stock or authorize the
increase or decrease of the shares of any series), adopting an agreement of
merger or consolidation under Sections 251 or 252 of the General Corporation Law
of Delaware, recommending to the stockholders the sale, lease or exchange of all
or substantially all of the corporation's property and assets, recommending to
the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the bylaws of the corporation; and, unless the
resolution, bylaws or certificate of incorporation expressly so provides, no
such committee shall have the power or
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authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger pursuant to Section 253 of the General
Corporation Law of Delaware.
4.2 Committee Minutes. Each committee shall keep regular minutes of its
meetings and report the same to the board of directors when required.
4.3 Meetings and Action of Committees. Meetings and actions of
committees shall be governed by, and held and taken in accordance with, the
provisions of Article III of these bylaws, Section 3.5 (place of meetings and
meetings by telephone), Section 3.6 (regular meetings), Section 3.7 (special
meetings and notice), Section 3.8 (quorum), Section 3.9 (waiver of notice), and
Section 3.10 (action without a meeting), with such changes in the context of
those bylaws as are necessary to substitute the committee and its members for
the board of directors and its members; provided, however, that the time of
regular meetings of committees may be determined either by resolution of the
board of directors or by resolution of the committee, that special meetings of
committees may also be called by resolution of the board of directors and that
notice of special meetings of committees shall also be given to all alternate
members, who shall have the right to attend all meetings of the committee. The
board of directors may adopt rules for the government of any committee not
inconsistent with the provisions of these bylaws.
ARTICLE V
OFFICERS
5.1 Officers. The officers of the corporation shall be a president, a
chief financial officer (who may be a vice president or treasurer of the
corporation) and a secretary. The corporation may also have, at the discretion
of the board of directors, a chairman of the board of directors, one or more
senior vice presidents and one or more other officers. One or more officers may
be appointed in accordance with the provisions of Section 5.3 of these bylaws.
Any number of offices may be held by the same person.
5.2 Election of Officers. The officers of the corporation, except such
officers as may be appointed in accordance with the provisions of Sections 5.3
or 5.5 of these bylaws, shall be elected by the board of directors.
5.3 Appointed Officers. The chief executive officer of the corporation,
or such other officer as the board of directors shall select, may appoint, or
the board of directors may appoint, such officers and agents of the corporation
as, in his or their judgment, are necessary to conduct the business of the
corporation. Each such officer shall hold office for such
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period, have such authority, and perform such duties as are provided in these
bylaws or as the board of directors or the chief executive officer may from time
to time determine.
5.4 Removal and Resignation of Officers. Any officer may be removed,
either with or without cause, by an affirmative vote of the majority of the
board of directors at any regular or special meeting of the board or, except in
the case of an officer elected by the board of directors, by the chief executive
officer or such other officer upon whom such power of removal may be conferred
by the board of directors.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
5.5 Vacancies in Offices. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors, except for vacancies in
the offices of subordinate officers which may be filled pursuant to Section 5.3
hereof.
5.6 Chairman of the Board. The chairman of the board, if such an
officer be elected, shall, if present, preside at meetings of the board of
directors and the stockholders and exercise and perform such other powers and
duties as may be from time to time assigned by the board of directors or
prescribed by the bylaws.
5.7 President. Subject to such supervisory powers, if any, as may be
given by the board of directors to the chairman of the board, the president
shall be the chief executive officer of the corporation and shall, subject to
the control of the board of directors, have general supervision, direction, and
control of the business and the officers of the corporation. In the absence or
nonexistence of a chairman of the board, he shall preside at all meetings of the
stockholders and at all meetings of the board of directors. He shall have the
general powers and duties of management usually vested in the office of
president of a corporation and shall have such other powers and duties as may be
prescribed by the board of directors or these bylaws.
5.8 Senior Vice Presidents and Vice Presidents. In the absence or
disability of the president, the vice presidents, if any, in order of their rank
as fixed by the board of directors or, if not ranked, a vice president
designated by the board of directors, shall perform all the duties of the
president and when so acting shall have all the powers of, and be subject to all
the restrictions upon, the president. The vice presidents shall have
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such other powers and perform such other duties as from time to time may be
prescribed for them respectively by the board of directors, these bylaws, the
president or the chairman of the board.
5.9 Secretary. The secretary shall keep or cause to be kept, at the
principal executive office of the corporation or such other place as the board
of directors may direct, a book of minutes of all meetings and actions of
directors, committees of directors, and stockholders. The minutes shall show the
time and place of each meeting, the names of those present at directors'
meetings or committee meetings, the number of shares present or represented at
stockholders' meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal
executive office of the corporation or at the office of the corporation's
transfer agent or registrar, as determined by resolution of the board of
directors, a share register, or a duplicate share register, showing the names of
all stockholders and their addresses, the number and classes of shares held by
each, the number and date of certificates evidencing such shares, and the number
and date of cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the board of directors required to be given by law or
by these bylaws. He shall keep the seal of the corporation, if one be adopted,
in safe custody and shall have such other powers and perform such other duties
as may be prescribed by the board of directors or by these bylaws.
5.10 Chief Financial Officer. The chief financial officer shall keep
and maintain, or cause to be kept and maintained, adequate and correct books and
records of accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital retained earnings, and shares. The books
of account shall at all reasonable times be open to inspection by any director.
The chief financial officer shall deposit all moneys and other
valuables in the name and to the credit of the corporation with such
depositories as may be designated by the board of directors. He shall disburse
the funds of the corporation as may be ordered by the board of directors, shall
render to the president and directors, whenever they request it, an account of
all his transactions as chief financial officer and of the financial condition
of the corporation, and shall have other powers and perform such other duties as
may be prescribed by the board of directors or the bylaws.
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5.11 Representation of Shares of Other Corporations. The chairman of
the board, the president, any vice president, the treasurer, the secretary or
assistant secretary of this corporation, or any other person authorized by the
board of directors or the president or a vice president, is authorized to vote,
represent, and exercise on behalf of this corporation all rights incident to any
and all shares of any other corporation or corporations standing in the name of
this corporation. The authority granted herein may be exercised either by such
person directly or by any other person authorized to do so by proxy or power of
attorney duly executed by such person having the authority.
5.12 Authority and Duties of Officers. In addition to the foregoing
authority and duties, all officers of the corporation shall respectively have
such authority and perform such duties in the management of the business of the
corporation as may be designated from time to time by the board of directors.
ARTICLE VI
RECORDS AND REPORTS
6.1 Maintenance and Inspection of Records. The corporation shall,
either at its principal executive offices or at such place or places as
designated by the board of directors, keep a record of its stockholders listing
their names and addresses and the number and class of shares held by each
stockholder, a copy of these bylaws as amended to date, accounting books, and
other records.
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 a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that 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 Delaware or at its principal place of
business.
6.2 Inspection by Directors. Any director shall have the right to
examine the corporation's stock ledger, a list of its stockholders, and its
other books and records for a purpose reasonably related to his position as a
director. The Court of Chancery is hereby vested with the exclusive jurisdiction
to determine whether a director is entitled to the inspection
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sought. The Court may summarily order the corporation to permit the director to
inspect any and all books and records, the stock ledger, and the stock list and
to make copies or extracts therefrom. The Court may, in its discretion,
prescribe any limitations or conditions with reference to the inspection, or
award such other and further relief as the Court may deem just and proper.
ARTICLE VII
GENERAL MATTERS
7.1 Execution of Corporate Contracts and Instruments. The board of
directors, except as otherwise provided in these bylaws, may authorize any
officer or officers, or agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the corporation; such authority
may be general or confined to specific instances. Unless so authorized or
ratified by the board of directors or within the agency power of an officer, no
officer, agent or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or for any amount.
7.2 Stock Certificates; Partly Paid Shares. The shares of a corporation
shall be represented by certificates, provided that the board of directors of
the corporation may provide by resolution or resolutions that some or all of any
or all classes or series of its stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the corporation. Notwithstanding the adoption of
such a resolution by the board of directors, every holder of stock represented
by certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate signed by, or in the name of the corporation by
the chairman or vice-chairman of the board of directors, or the president or
vice president, and by the chief financial officer, the treasurer, or an
assistant treasurer, or the secretary or an assistant secretary of such
corporation representing the number of shares registered in certificate form.
Any or all of the signatures 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
by the corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue.
The corporation may issue the whole or any part of its shares as partly
paid and subject to call for the remainder of the consideration to be paid
therefor. Upon the face or back of each stock certificate issued to represent
any such partly paid
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shares, or upon the books and records of the corporation in the case of
uncertificated partly paid shares, the total amount of the consideration to be
paid therefor and the amount paid thereon shall be stated. Upon the declaration
of any dividend on fully paid shares, the corporation shall declare a dividend
upon partly paid shares of the same class, but only upon the basis of the
percentage of the consideration actually paid thereon.
7.3 Special Designation on Certificates. If the corporation is
authorized to issue more than one class of stock or more than one series of any
class, then the powers, the designations, the preferences, and the relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate that the corporation shall issue to represent such class or
series of stock; provided, however, that, except as otherwise provided in
Section 202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements there may be set forth on the face or back of the certificate that
the corporation shall issue to represent such class or series of stock a
statement that the corporation will furnish without charge to each stockholder
who so requests the powers, the designations, the preferences, and the relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
7.4 Lost Certificates. The corporation may issue a new certificate of
stock or uncertificated shares in the place of any certificate theretofore
issued by it, alleged to have been lost, stolen or destroyed, and the
corporation may require the owner of the lost, stolen or destroyed certificate,
or his legal representative to give the corporation a bond sufficient to
indemnify it against any claim that may be made against it on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate or uncertified shares.
7.5 Construction; Definitions. Unless the context requires otherwise,
the general provisions, rules of construction, and definitions in the Delaware
General Corporation Law shall govern the construction of these bylaws. Without
limiting the generality of this provision, the singular number includes the
plural, the plural number includes the singular, and the term "person" includes
both a corporation and a natural person.
7.6 Dividends. The directors of the corporation, subject to any
restrictions contained in the General Corporation Law of Delaware or the
certificate of incorporation, may declare and pay dividends upon the shares of
its capital stock. Dividends may be
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paid in cash, in property, or in shares of the corporation's capital stock.
The directors of the corporation may set apart out of any of the funds
of the corporation available for dividends a reserve or reserves for any proper
purpose and may abolish any such reserve.
7.7 Fiscal Year. The fiscal year of the corporation shall be fixed by
resolution of the board of directors and may be changed by the board of
directors.
7.8 Seal. The board of directors may adopt a corporate seal, and may
use the same by causing it or a facsimile thereof, to be impressed or affixed or
in any other manner reproduced.
ARTICLE VIII
AMENDMENTS
8.1 Amendments. The bylaws of the corporation may be altered, amended
or repealed or new bylaws may be adopted by the stockholders or by the board of
directors.
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