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Exhibit 3.2
KLA-TENCOR CORPORATION,
A DELAWARE CORPORATION
BY-LAWS
ORIGINALLY ADOPTED: JUNE 12, 1989
AS AMENDED: APRIL 30, 1997
ARTICLE I
STOCKHOLDERS
Section 1. Annual Meeting. An annual meeting of the
stockholders, for the election of directors to succeed those whose terms expire
and for the transaction of such other business as may properly come before the
meeting, shall be held at such place, on such date, and at such time as the
Board of Directors shall each year fix, which date shall be within thirteen
months subsequent to the last annual meeting of stockholders.
Section 2. Special Meetings. Special meetings of the
stockholders, for any purpose or purposes prescribed in the notice of the
meeting, may be called only by the Board of Directors and shall be held at such
place, on such date, and at such time as they shall fix. Business transacted
at special meetings shall be confined to the purpose or purposes stated in the
notice.
Section 3. Notice of Meetings. Written notice of the place,
date, and time of all meetings of the stockholders shall be given, not less
than ten (10) nor more than sixty to each stockholder entitled to vote at such
meeting, except as otherwise provided herein or required by law (meaning, here
and hereinafter, as required from time to time by the Delaware General
Corporation Law or the Certificate of Incorporation of the Corporation). When a
meeting is adjourned to another place, date
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or time, written notice need not be given of the adjourned meeting if the
place, date and time thereof are announced at the meeting at which the
adjournment is taken; provided, however, that if the date of any adjourned
meeting is more than thirty (30) days after the date for which the meeting was
originally noticed, or if a new record date is fixed for the adjourned meeting,
written notice of the place, date, and time of the adjourned meeting shall be
given in conformity herewith. At any adjourned meeting, any business may be
transacted which might have been transacted at the original meeting.
Section 4. Quorum. At any meeting of the stockholders, the
holders of a majority of all of the shares of the stock entitled to vote at the
meeting, present in person or by proxy, shall constitute a quorum for all
purposes, unless or except to the extent that the presence of a larger number
may be required by law.
If a quorum shall fail to attend any meeting, the chairman of the
meeting or the holders of a majority of the shares of stock entitled to vote
who are present, in person or by proxy, may adjourn the meeting to another
place, date or time.
If a notice of any adjourned special meeting of stockholders is sent
to all stockholders entitled to vote thereat, stating that it will be held with
those present constituting a quorum, then, provided that those present hold
more than 33-1/3% of the shares entitled to vote, those present at such
adjourned meeting shall constitute a quorum, and all matters shall be
determined by a majority of the votes cast at such meeting.
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* Section 5. Conduct of the Stockholders' Meeting. At every
meeting of the stockholders, the Chairman of the Board of the Corporation, or
in his absence the Chief Executive Officer of the Corporation, or in his
absence the President of the Corporation, or in his absence the Vice President
designated by the Chairman of the Board or the Chief Executive Officer, or in
the absence of such designation any Vice President, or in the absence of the
Chairman of the Board, Chief Executive Officer, President or any Vice President
a chairman chosen by the majority of the voting shares represented in person or
by proxy, shall act as chairman of the meeting. The Secretary of the
Corporation or a person designated by the chairman shall act as Secretary of
the meeting. Unless otherwise approved by the chairman, attendance at the
Stockholders' Meeting shall be restricted to stockholders of record, persons
authorized in accordance with Section 8 of these By-Laws to act by proxy, and
officers of the Corporation.
Section 6. Conduct of Business. The Chairman shall call the
meeting to order, establish the agenda, and conduct the business of the meeting
in accordance herewith or, at the Chairman's discretion, in accordance with the
wishes of the stockholders in attendance.
The Chairman shall also conduct the meeting in an orderly manner, rule
on the precedence of, and procedure on, motions and other procedural matters,
and exercise discretion with respect to such procedural matters with fairness
and good faith toward all those entitled to take part. The Chairman may impose
reasonable limits on the amount of time taken up at the meeting on discussion
in general or on remarks by any one stockholder. Should any person in
attendance become unruly or obstruct the meeting proceedings, the Chairman
shall have the power to have such person removed from participation.
Notwithstanding anything in these By-Laws to the contrary, no business shall be
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* As amended April 30, 1997.
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conducted at any meeting except in accordance with the procedures set forth in
this Section 6, Section 7 below and Section 11 of Article II below. The
Chairman of any meeting shall, if the facts warrant, determine and declare to
the meeting that business was not properly brought before the meeting and in
accordance with the provisions of this Section 6, Section 7 below and Section
11 of Article II below, and if he should so determine, he shall so declare to
the meeting and any such business not properly brought before the meeting shall
not be transacted.
Section 7. Notice of Stockholder Business. At an annual or
special meeting of the stockholders, only such business shall be conducted as
shall have been properly brought before the meeting. To be properly brought
before a meeting, business must be (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of Directors,
(b) properly brought before the meeting by or at the direction of the Board of
Directors, (c) if at an annual meeting, properly brought before the meeting by
a stockholder, or (d) if at a special meeting, if, and only if, the notice of a
special meeting provides for business to be brought before the meeting by
stockholders, properly brought before the meeting by a stockholder.
For business to be properly brought before a meeting by a stockholder,
the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation no later than the date upon which stockholder proposals to be
included in the Corporation's Proxy Statement must be received by the
Corporation under the requirements of the Securities Exchange Act of 1934, as
amended, and the rules promulgated thereunder.
A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual or special meeting
(a) a brief description of the business desired
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to be brought before the annual or special meeting and the reasons for
conducting such business at the annual or special meeting, (b) the name and
address, as they appear on the Corporation's books, of the stockholder
proposing such business, (c) the class and number of shares of the Corporation
which are beneficially owned by the stockholder, (d) any material interest of
the stockholder in such business and (e) such other information relating to the
stockholder or the proposal as is required to be disclosed under the rules of
the Securities and Exchange Commission governing the solicitation of proxies
with respect to such proposal, whether or not such proxies are in fact
solicited by the stockholder.
Notwithstanding anything in these By-Laws to the contrary, no business
shall be conducted at an annual or special meeting except in accordance with
the procedures set forth in this Section 7. The chairman of the meeting shall,
if the facts warrant, determine and declare to the meeting that business was
not properly brought before the meeting and in accordance with the provisions
of this Section 7, and if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted.
Section 8. Proxies and Voting. At any meeting of the
stockholders, every stockholder entitled to vote may vote in person or by proxy
authorized by an instrument in writing filed in accordance with the procedure
established for meeting. No stockholder may authorize more than one proxy for
his shares.
Each stockholder shall have one vote for every share of stock entitled
to vote which is registered in his or her name on the record date for the
meeting, except as otherwise provided herein or required by law.
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All voting, including on the election of directors but excepting where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or his or her proxy, a stock
vote shall be taken. Every stock vote shall be taken by ballots, each of which
shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
Every vote taken by ballots shall be counted by an inspector or inspectors
appointed by the chairman of the meeting.
All elections shall be determined by a plurality of the votes cast,
and except as otherwise required by law or By-Laws, all other matters shall be
determined by a majority of the votes cast.
Section 9. Stock List. A complete list of stockholders entitled
to vote at any meeting of stockholders, arranged in alphabetical order for each
class of stock and showing address of each such stockholder and the number of
shares registered in his or her name, shall be open to the examination of any
such 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, at the
place where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during
the whole time thereof and shall be open to the examination of any such
stockholder who is present. This list shall presumptively determine the
identity of the stockholders entitled to vote at the meeting and the number of
shares held by each of them.
Section 10. Elimination of Written Consent. Any action required
or permitted to be taken by the stockholders of the corporation must be
effected at a duly called annual or special meeting of
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stockholders of the corporation and may not be effected by any consent in
writing by such stockholders.
ARTICLE II
BOARD OF DIRECTORS
* Section 1. Number and Term of Office. The number of directors
shall initially be twelve (12) and, thereafter, shall be fixed from time to
time exclusively by the Board of Directors pursuant to a resolution adopted by
a majority of the total number of authorized directors (whether or not there
exists any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board for adoption). The directors shall
be divided into three classes, as nearly equal in number as reasonably
possible, with the term of office of the first class to expire at the 1990
annual meeting of stockholders, the term of office of the second class to
expire at the 1991 annual meeting of stockholders and the term of office of the
third class to expire at the 1992 annual meeting of stockholders. At each
annual meeting of stockholders following such initial classification and
election, directors shall be elected to succeed those directors whose term
expire for a term of office to expire at the third succeeding annual meeting of
stockholders after their election. All directors shall hold office until the
expiration of the term for which elected and until their successors are
elected, except in the case of the death, resignation or removal of any
director.
Section 2. Vacancies and Newly Created Directorships. Subject
to the rights of the holders of any series of Preferred Stock then outstanding,
newly created directorships resulting from any increase in the authorized
number of directors or any vacancies in the Board of Directors
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* As amended April 30, 1997.
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resulting from death, resignation, retirement, disqualification or other cause
(other than removal from office by a vote of stockholders) may be filled only
by a majority vote of the directors then in office, though less than a quorum,
and directors so chosen shall hold office for a term expiring at the annual
meeting of stockholders at which the term of office of the class to which they
have been elected expires. No decrease in the number of directors constituting
the Board of Directors shall shorten the term of any incumbent director.
Section 3. Removal. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, any directors, or the entire Board
of Directors, may be removed from office at any time, but only for cause and
only by the affirmative vote of the holders of at least a majority of the
voting power of all of the then-outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class. Vacancies in the Board of Directors resulting from
such removal may be filled by (i) a majority of the directors then in office,
though less than a quorum, or (ii) the stockholders at a special meeting of the
stockholders properly called for that purpose, by the vote of the holders of a
majority of the shares entitled to vote at such special meeting. Directors so
chosen shall hold office for a term expiring at the annual meeting of
stockholders at which the term of office of the class to which they have been
elected expires.
Section 4. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such place or places, on such date or dates, and at
such time or times as shall have been established by the Board of Directors and
publicized among all directors. A notice of each regular meeting shall not be
required.
Section 5. Special Meetings. Special meetings of the Board of
Directors may be called by one-third of the directors then in office (rounded
up to the nearest whole number), the Chairman
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of the Board or by the chief executive officer and shall be held at such place,
on such date, and at such time as they or he shall fix. Notice of the place,
date, and time of each such special meeting shall be given each director by
whom it is not waived by mailing written notice not fewer than five (5) days
before the meeting or by telecopying or delivering by overnight courier service
the same not fewer than twenty-four (24) hours before the meeting. Unless
otherwise indicated in the notice thereof, any and all business may be
transacted at a special meeting.
Section 6. Quorum. At any meeting of the Board of Directors, a
majority of the total number of authorized Directors shall constitute a quorum
for all purposes. If a quorum shall fail to attend any meeting, a majority of
those present may adjourn the meeting to another place, date, or time, without
further notice or waiver thereof.
Section 7. Participation in Meetings by Conference Telephone.
Members of the Board of Directors, or of any committee thereof, may participate
in a meeting of such Board or committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other and such participation shall constitute
presence in person at such meeting.
Section 8. Conduct of Business. At any meeting of the Board of
Directors, business shall be transacted in such order and manner as the Board
may from time to time determine, and all matters shall be determined by the
vote of a majority of the directors present, except as otherwise provided
herein or required by law. Action may be taken by the Board of Directors
without a meeting if all members thereof consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of
Directors.
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Section 9. Powers. The Board of Directors may, except as
otherwise required by, law, exercise all such powers and do all such acts and
things as may be exercised or done by the Corporation, including, without
limiting the generality of the foregoing, the unqualified power:
(1) To declare dividends from time to time in accordance
with law;
(2) To purchase or otherwise acquire any property, rights
or privileges on such terms as it shall determine;
(3) To authorize the creation, making and issuance, in
such form as it may determine, of written obligations of every kind, negotiable
or non-negotiable, secured or unsecured, and to do all things necessary in
connection therewith;
(4) To remove any officer of the Corporation with or
without cause, and from time to time to devolve the powers and duties of any
officer upon any other person for the time being;
(5) To confer upon any officer of the Corporation the
power to appoint, remove and suspend subordinate officers, employees and
agents;
(6) To adopt from time to time such stock, option, stock
purchase, bonus or other compensation plans for directors, officers, employees
and agents of the Corporation and its subsidiaries as it may determine;
(7) To adopt from time to time such insurance,
retirement, and other benefit plans for directors, officers, employees and
agents of the Corporation and its subsidiaries as it may determine; and
(8) To adopt from time to time regulations, not
inconsistent with these By-Laws, for the management of the Corporation's
business and affairs.
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Section 10. Compensation of Directors. Directors, as such, may
receive, pursuant to resolution of the Board of Directors, fixed fees and other
compensation for their services as directors, including, without limitation,
their services as members of committees of the Board of Directors.
Section 11. Nomination of Director Candidates. Subject to the
rights of holders of any class or series of Preferred Stock then outstanding,
nominations for the election of directors may be made by the Board of Directors
or any nominating or proxy committee appointed by the Board of Directors or by
any stockholder entitled to vote in the election of Directors generally who
complies with the notice and procedural requirements of this Section 11. All
nominees for election to the Board shall satisfy the qualification requirements
for membership on the Board of Directors of the Corporation established by any
nominating committee designated by the Board, which requirements shall be
designed to evaluate, without limitation, the following:
(a) The applicability of the Candidate's business
experience and knowledge to the Corporation's business, including any technical
skills, industry contacts or other special qualifications which would make the
Candidate a valuable member of the Board.
(b) The resulting balance of knowledge and experience
which would exist on the Board if the Candidate were elected in light of the
business experience and knowledge of the other persons likely to be elected to
the Board.
(c) The Candidate's other business interests and
commitments and the extent to which such interests and commitments are
inconsistent or incompatible with such Candidate's effective board membership,
including the extent to which the Nominating Committee believes that such
Candidate's membership on the Board may be detrimental to the long-term
interests of the
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Corporation and to the maximization of the value of the Corporation's
stockholders' investment in the Corporation.
In addition to any other applicable requirements, any such stockholder
nomination shall be made only pursuant to timely notice in writing to the
Secretary of the Corporation setting forth such stockholder's intent to make a
nomination or nominations. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal offices of the Corporation
not later than the date on which stockholder proposals to be included in the
proxy statement with respect to any annual or special meeting must be received
by the Corporation under the requirements of the Securities Exchange Act of
1934, as amended, and the rules promulgated thereunder.
Each such notice by a stockholder shall set forth: (a) the name and
address, as they appear on the Corporation's stock register, of the stockholder
who intends to make the nomination; (b) a representation that the stockholder
is a holder of record of stock of the Corporation entitled to vote for the
election of Directors on the date of such notice and intends to appear in
person or by proxy at the meeting to nominate the person or persons specified
in the notice; (c) a description of all arrangements or understandings between
the stockholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be
made by the stockholder; (d) the name, age, business and residence address and
principal occupation of each person the stockholder proposes to nominate for
election as a director; (e) such other information regarding the stockholder
and each nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission, whether or not proxies are in fact
solicited for the election of such person; and (f) the signed consent of each
nominee to serve as a director of the Corporation if so elected.
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The Corporation or any nominating committee designated by the Board of
Directors may require any proposed nominee to furnish such other information as
may reasonably be required by the Corporation or such committee to determine
the qualification of such nominee for election as a director of the
Corporation.
In the event that a person is validly designated as a nominee in
accordance with this Section 11 and shall thereafter become unable or unwilling
to stand for election to the Board of Directors, the Board of Directors or the
stockholder who proposed such nominee as the case may be, may designate a
substitute nominee; provided, however, that (i) in the case of the persons
nominated by a stockholder, such a substitution may only be made if a written
notice to the Secretary setting forth such information regarding such
substitute nominee as would have been required to be delivered to the Secretary
pursuant to this Section 11 had such substitute nominee been initially proposed
as a nominee is received by the Corporation at its principal executive offices
not less than thirty (30) days before the date of the election at which the
initial nominee was nominated to stand or (ii) in the case of persons nominated
by the Board of Directors the substitute nominee must be designated not less
than thirty (30) days before the date of the election at which the initial
nominee was nominated to stand.
If the chairman of the meeting for the election of Directors
determines that a nomination of any candidate for election as a Director at
such meeting was not made in accordance with the applicable provisions of this
Section 11, such nomination shall be void; provided, however, that nothing in
this Section 11 shall be deemed to limit any voting rights upon the occurrence
of dividend arrearages, provided to holders of Preferred Stock pursuant to the
Preferred Stock designation for any series of Preferred Stock.
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ARTICLE III
COMMITTEES
Section 1. Committees of the Board of Directors. The Board of
Directors, by a resolution passed by a vote of a majority of the whole Board,
may from time to time designate committees of the Board, with such lawfully
delegable powers and duties as it thereby confers, to serve at the pleasure of
the Board and shall, for those committees and any others provided for herein,
elect a director or directors to serve as the member or members, designating,
if it desires, other directors as alternate members who may replace any absent
or disqualified member at any meeting of the committee. Any committee so
designated may exercise the power and authority of the Board of Directors 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 Delaware
General Corporation Law if the resolution which designates the committee or a
supplemental resolution of the Board of Directors shall so provide. In the
absence or disqualification of any member of any committee and any alternate
member in his place, the member or members of the committee present at the
meeting and not disqualified from voting, whether or not he or they constitute
a quorum, may by unanimous vote appoint another member of the Board of
Directors to act at the meeting in the place of the absent or disqualified
member.
Section 2. Conduct of Business. Each committee may determine
the procedural rules for meeting and conducting its business and shall act in
accordance therewith, except as otherwise provided herein or required by law.
Adequate provision shall be made for notice to members of all meetings;
one-third of the authorized members shall constitute a quorum unless the
committee shall consist of one or two members, in which event one member shall
constitute a quorum; and all
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matters shall be determined by a majority vote of the members present. Action
may be taken by any committee without a meeting if all members thereof consent
thereto in writing, and the writing or writings are filed with the minutes of
the proceedings of such committee.
ARTICLE IV
OFFICERS
* Section 1. Generally. The officers of the Corporation shall
consist of a Chairman of the Board, a Chief Executive Officer, a President, one
or more Vice Presidents, a Secretary, a Chief Financial Officer and such other
officers as may from time to time be appointed by the Board of Directors.
Officers shall be elected by the Board of Directors, which shall consider that
subject at its first meeting after every annual meeting of stockholders. Each
officer shall hold office until his successor is elected and qualified or until
his earlier resignation or removal. The Chairman of the Board, the Chief
Executive Officer and the President shall each be members of the Board of
Directors. Any number of offices may be held by the same person.
* Section 2. 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 exercise and perform such other powers and duties as may from
time to time be assigned to him by the Board of Directors or as may be
prescribed by these By-Laws. If there is no Chief Executive Officer, then the
Chairman of the Board shall also be the Chief Executive Officer of the
Corporation and shall have the powers and duties prescribed in Article IV,
Section 3 of these By-Laws.
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* As amended April 30, 1997.
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* Section 3. Chief Executive Officer. Subject to such supervisory
powers, if any, as may be given by the Board of Directors to the Chairman of
the Board, if there be such an officer, the Chief Executive Officer of the
Corporation 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. He shall preside at all meetings of the stockholders and, in
the absence or nonexistence of a Chairman of the Board, at all meetings of the
Board of Directors. He shall have the general powers and duties of management
usually vested in the Chief Executive Officer of a Corporation and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
* Section 4. President. The President shall be the chief
operating officer of the Corporation with such duties and powers as may be
prescribed by the Chief Executive Officer or the Board of Directors.
* Section 5. Vice President. Each Vice President shall have such
powers and duties as may be delegated to him by the Board of Directors.
Section 6. Chief Financial Officer. The Chief Financial Officer
shall have the responsibility for maintaining the financial records of the
Corporation and shall have custody of all monies and securities of the
Corporation. He shall make or cause to be made such disbursements of the funds
of the Corporation as are authorized and shall render from time to time an
account of all such transactions and of the financial condition of the
Corporation. The Chief Financial Officer shall also perform such other duties
as the Board of Directors may from time to time prescribe.
Section 7. Secretary. The Secretary shall issue all authorized
notices for, and shall keep, or cause to be kept, minutes of all meetings of
the stockholders, the Board of Directors, and all committees of the Board of
Directors. The Secretary shall keep, or cause to be kept at the principal
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executive office or at the office of the Corporation's transfer agent or
registrar, a record of the Corporation's stockholders, giving the names and
addresses of all stockholders and the number and class of shares held by each.
The Secretary shall have charge of the seal and the corporate books of the
Corporation and shall perform such other duties as the Board of Directors may
from time to time prescribe.
Section 8. Delegation of Authority. The Board of Directors may
from time to time delegate the powers or duties of any officer to any other
officers or agents, notwithstanding any provision hereof.
Section 9. Removal. Any officer of the Corporation may be
removed at any time, with or without cause, by the Board of Directors.
* Section 10. Action With Respect to Securities of Other
Corporations. Unless otherwise directed by the Board of Directors, the
Chairman of the Board, the Chief Executive Officer or any officer of the
Corporation authorized by the Chairman of the Board or the Chief Executive
Officer shall have power to vote and otherwise act on behalf of the
Corporation, in person or by proxy, at any meeting of stockholders of or with
respect to any action of stockholders of any other corporation in which this
Corporation may hold securities and otherwise to exercise any and all rights
and powers which this Corporation may possess by reason of its ownership of
securities in such other corporation.
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* As amended April 30, 1997.
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ARTICLE V
STOCK
* Section 1. Certificates of Stock. Each stockholder shall be
entitled to a certificate signed by, or in the name of the Corporation by, the
Chairman of the Board, the Chief Executive Officer, the President or a Vice
President, and by the Secretary or an Assistant Secretary, or the Chief
Financial Officer or Treasurer (if there be such an officer), certifying the
number of shares owned by him or her. Any of or all the signatures on the
certificate may be facsimile.
Section 2. Transfers of Stock. Transfers of stock shall be made
only upon the transfer books of the Corporation kept at an office of the
Corporation or by transfer agents designated to transfer shares of the stock of
the Corporation. Except where a certificate is issued in accordance with
Section 4 of Article V of these By-Laws, an outstanding certificate for the
number of shares involved shall be surrendered for cancellation before a new
certificate is issued therefor.
Section 3. Record Date. The Board of Directors may fix a record
date, which shall not be more than sixty (60) days nor fewer than ten (10) days
before the date of any meeting of stockholders, no more than sixty (60) days
prior to the time for other action hereinafter described, as of which there
shall be determined the stockholders who are entitled: to notice of or to vote
at any meeting of stockholders or any adjournment thereof; to express consent
to corporate action in writing without a meeting (if the Corporation's charter
allows such action without a meeting); to receive payment of any dividend or
other distribution or allotment of any rights; or to exercise any rights with
respect to any change, conversion or exchange of stock or with respect to any
other lawful action.
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* As amended April 30, 1997.
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Section 4. Lost, Stolen or Destroyed Certificates. In the event
of the loss, theft or destruction of any certificate of stock, another may be
issued in its place pursuant to such regulations as the Board of Directors may
establish concerning proof of such loss, theft or destruction and concerning
the giving of a satisfactory bond or bonds of indemnity.
Section 5. Regulations. The issue, transfer, conversion and
registration of certificates of stock shall be governed by such other
regulations as the Board of Directors may establish.
ARTICLE VI
NOTICES
Section 1. Notices. Except as otherwise specifically provided
herein or required by law, all notices required to be given to any stockholder,
director, officer, employee or agent shall be in writing and may in every
instance be effectively given by hand delivery to the recipient thereof, by
depositing such notice in the mails, postage paid, or by sending such notice by
prepaid telegram, mailgram or commercial courier service. Any such notice
shall be addressed to such stockholder, director, officer, employee or agent at
his or her last known address as the same appears on the books of the
Corporation. The time when such notice shall be deemed to given shall be the
time such notice is received by such stockholder, director, officer, employee
or agent, or by any person accepting such notice on behalf of such person, if
hand delivered, or the time such notice is dispatched, if delivered through the
mails or by telegram, mailgram or courier.
Section 2. Waivers. A written waiver of any notice, signed by a
stockholder, director, officer, employee or agent, whether before or after the
time of the event for which notice is to be given, shall be deemed equivalent
to the notice required to be given to such stockholder, director,
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officer, employee or agent. Neither the business nor the purpose of any
meeting need be specified in such a waiver. Attendance of a person at a
meeting shall constitute a waiver of notice for 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.
ARTICLE VII
MISCELLANEOUS
Section 1. Facsimile Signatures. In addition to the provisions
for use of facsimile signatures elsewhere specifically authorized in these
By-Laws, facsimile signatures of any officer or officers of the Corporation may
be used whenever and as authorized by the Board of Directors or a committee
thereof.
Section 2. Corporate Seal. The Board of Directors may provide a
suitable seal, containing the name of the Corporation, which seal shall be in
the charge of the Secretary. If and when so directed by the Board of Directors
or a committee thereof, duplicates of the seal may be kept and used by the
Chief Financial Officer or by an Assistant Secretary.
Section 3. Reliance Upon Books, Reports and Records. Each
director, each member of any committee designated by the Board of Directors,
and each officer of the Corporation shall, in the performance of his duties, be
fully protected in relying in good faith upon the books of account or other
records of the Corporation, including reports made to the Corporation by any of
its officers, by an independent certified public accountant, or by an appraiser
selected with reasonable care.
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Section 4. Fiscal Year. The fiscal year of the Corporation
shall be as fixed by the Board of Directors.
Section 5. Time Periods. In applying any provision of these
By-Laws which require that an act be done or not done a specified number of
days prior to an event or that an act be done during a period of a specified
number of days prior to an event, calendar days shall be used, the day of the
doing of the act shall be excluded, and the day of the event shall be included.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Right to Indemnification. 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 ("proceeding"), by reason of the fact that he or a person of whom
he is the legal representative, is or was a director, officer or employee of
the Corporation or is or was serving at the request of the Corporation as a
director, officer or employee of another corporation, or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer or employee or in any other
capacity while serving as a director, officer or employee, shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by
Delaware Law, 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 expenses,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
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taxes or penalties, amounts paid or to be paid in settlement and amounts
expended in seeking indemnification granted to such person under applicable
law, this by-law or any agreement with the Corporation) reasonably incurred or
suffered by such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director, officer or employee
and shall inure to the benefit of his or her heirs, executors and
administrators; provided however, that, except as provided in Section 2 of this
Article VIII, the Corporation shall indemnify any such person seeking indemnity
in connection with an action, suit or proceeding (or part thereof) initiated by
such person only if such action, suit or proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. Such right shall be a
contract right and shall include the right to be paid by the Corporation
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the Delaware General Corporation Law
then so requires, the payment of such expenses incurred by a director or
officer of the Corporation in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such person
while a director or officer, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of such proceeding,
shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it
should be determined ultimately that such director or officer is not entitled
to be indemnified under this Section 1 or otherwise.
Section 2. Right of Claimant to Bring Suit. If a claim under
Section 1 of this Article VIII is not paid in full by the Corporation within
twenty (20) days after a written claim has been received by the Corporation,
the claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if such suit is not frivolous or
brought in bad faith, the
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claimant shall be entitled to be paid also the expense of prosecuting such
claim. 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 this Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law
for the Corporation to indemnify the claimant for the amount claimed, but the
burden of proving 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 has met the applicable standard of conduct set
forth in the Delaware General Corporation Law, nor an actual determination by
the Corporation (including its Board of Directors, independent legal counsel,
or its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that claimant
has not met the applicable standard of conduct.
Section 3. Non-Exclusivity of Rights. The rights conferred on
any person in Sections 1 and 2 of this Article VIII shall not be exclusive of
any other right which such persons 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 4. Indemnification Contracts. The Board of Directors is
authorized to enter into a contract with any director, officer, employee or
agent of the Corporation, or any person serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including employee
benefit plans, providing for
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indemnification rights equivalent to or, if the Board of Directors so
determines, greater than, those provided for in this Article VIII.
Section 5. Insurance. The Corporation shall maintain insurance
to the extent reasonably available, at its expense, to protect itself and any
such director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
such expense, liability or loss, whether or not the Corporation would have the
power to indemnify such person against such expense, liability or loss under
the Delaware General Corporation Law.
Section 6. Effect of Amendment. Any amendment, repeal or
modification of any provision of this Article VIII by the stockholders and the
Directors of the Corporation shall not adversely affect any right or protection
of a director or officer of the Corporation existing at the time of such
amendment, repeal or modification.
Section 7. Savings Clause. If this Article VIII or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each director,
officer, employee and agent of the Corporation as to costs, charges and
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation, to the full extent permitted by an applicable portion
of this Article VIII that shall not have been invalidated and to the full
extent permitted by applicable law.
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ARTICLE IX
AMENDMENTS
The Board of Directors is expressly empowered to adopt, amend or
repeal By-Laws or the Corporation. Any adoption, amendment or repeal of
By-Laws of the Corporation by the Board of Directors shall require the approval
of a majority of the total number of authorized directors (whether or not there
exist any vacancies in previously authorized directorships at the time any
resolution providing for adoption, amendment or repeal is presented to the
Board). The stockholders shall also have power to adopt, amend or repeal the
By-Laws of the Corporation. In the event of any such adoption, amendment or
repeal of these By-Laws by Stockholders, in addition to any vote of the holders
or any class or series of stock of this Corporation required by law or by these
By-Laws, the affirmative vote of the holders of at least a majority of the
voting power of all of the then-outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required.
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