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Exhibit 3.2
BYLAWS
OF
COOPERATIVE HOLDINGS, INC.
(a Delaware corporation)
ARTICLE I
Offices
SECTION 1. Registered Office. The registered office of the
Company shall be at 1013 Centre Road, Wilmington, Delaware 19805 and the
registered agent at such address shall be Corporation Service Company. The Board
of Directors may change the registered office from time to time.
Section 2. Other Offices. The Company may have such other
offices either within or without the State of Delaware as the Board of Directors
may designate or as the business of the Company may require from time to time.
ARTICLE II
Stockholders
SECTION 1. Annual Meetings. The annual meeting of stockholders
for the election of directors and for the transaction of such other business as
may properly come before the meeting shall be held each year at such date and
time, within or without the State of Delaware, as the Board of Directors shall
determine.
SECTION 2. Special Meetings. (a) Special meetings of
stockholders for the transaction of such business as may properly come before
the meeting may be called by order of the Board of Directors or by stockholders
holding together at least a majority of all the shares of the Company entitled
to vote at the meeting.
(b) Notwithstanding the provisions of Section 2(a),
immediately following the consummation of a public offering by the Company of
any of its capital stock, special meetings of stockholders may be called only by
the President, the Chairman of the Board of Directors (if any) or by order of a
majority of the Board of Directors.
(c) Any such meeting held pursuant to this Section 2 shall be
held at such date and time, within or without the State of Delaware, as may be
specified by such order. Whenever the directors shall fail to fix such place,
the meeting shall be held at the principal executive office of the Company.
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SECTION 3. Notice of Meetings. Written notice of all meetings
of the stockholders, stating the place, date and hour of the meeting and the
place within the city or other municipality or community at which the list of
stockholders may be examined, shall be mailed or delivered to each stockholder
not less than 10 nor more than 60 days prior to the meeting. Notice of any
special meeting shall state in general terms the purpose or purposes for which
the meeting is to be held and the business transacted at any such meeting shall
be limited to matters relating to the purpose or purposes set forth in the
notice of meeting.
SECTION 4. Fixing Date for Determination of Stockholders of
Record. In order that the Company may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or to express consent to corporate action in writing without a meeting, 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 a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors and which record date: (1) in the case of determination
of stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than 60 nor less
than 10 days before the date of such meeting; (2) in the case of determination
of stockholders entitled to express consent to corporate action in writing
without a meeting, shall not be more than ten days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors; and (3)
in the case of any other action, shall not be more than 60 days prior to such
other action. If no record date is fixed: (1) 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; (2) the record date for
determining stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action of the Board of Directors is
required by law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Company in accordance with applicable law, or, if prior action by the Board of
Directors is required by law, shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior action; and
(3) 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.
SECTION 5. Stockholder Lists. The officer who has charge of
the stock ledger of the Company shall prepare and make, at least 10 days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, 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 list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
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The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
section or the books of the Company, or to vote in person or by proxy at any
meeting of stockholders.
SECTION 6. Quorum. Except as otherwise provided by law or the
Company's Certificate of Incorporation, a quorum for the transaction of business
at any meeting of stockholders shall consist of the holders of record of a
majority of the issued and outstanding shares of the capital stock of the
Company entitled to vote at the meeting, present in person or by proxy. At all
meetings of the stockholders at which a quorum is present, all matters, except
as otherwise provided by law or the Certificate of Incorporation, shall be
decided by the vote of the holders of a majority of the shares entitled to vote
thereat present in person or by proxy. If there be no such quorum, the holders
of a majority of such shares so present or represented may adjourn the meeting
from time to time, without further notice, until a quorum shall have been
obtained. When a quorum is once present it is not broken by the subsequent
withdrawal of any stockholder.
SECTION 7. Organization. Meetings of stockholders shall be
presided over by the Chairman, if any, or if none or in the Chairman's absence
the Vice-Chairman, if any, or if none or in the Vice-Chairman's absence the
President, if any, or if none or in the President's absence the Chief Operating
Officer, or, if none of the foregoing is present, by a chairman to be chosen by
the stockholders entitled to vote who are present in person or by proxy at the
meeting. The Secretary of the Company, or in the Secretary's absence an
Assistant Secretary, shall act as secretary of every meeting, but if neither the
Secretary nor an Assistant Secretary is present, the presiding officer of the
meeting shall appoint any person present to act as secretary of the meeting.
SECTION 8. Voting; Proxies; Required Vote. (a) At each meeting
of stockholders, every stockholder shall be entitled to vote in person or by
proxy appointed by instrument in writing, subscribed by such stockholder or by
such stockholder's duly authorized attorney-in-fact (but no such proxy shall be
voted or acted upon after three years from its date, unless the proxy provides
for a longer period), and, unless the Certificate of Incorporation provides
otherwise, shall have one vote for each share of stock entitled to vote
registered in the name of such stockholder on the books of the Company on the
applicable record date fixed pursuant to these Bylaws. At all elections of
directors the voting may but need not be by ballot and a plurality of the votes
cast there shall elect. Except as otherwise required by law or the Certificate
of Incorporation, any other action shall be authorized by a majority of the
votes cast.
(b) Any action required or permitted to be taken at any
meeting of stockholders may, except as otherwise required by law or the
Certificate of Incorporation, be taken without a meeting, without prior notice
and without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of record of the issued and outstanding capital
stock of the Company having a majority of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted, and the writing or writings are filed with the
permanent records of the Company. Prompt notice of the taking of corporate
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing. Notwithstanding the
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provisions of this Section 8(b), immediately following the consummation of a
public offering by the Company of any of its capital stock, stockholders of the
Company may not take any action by written consent in lieu of a meeting.
(c) Where a separate vote by a class or classes, present in
person or represented by proxy, shall constitute a quorum entitled to vote on
that matter, the affirmative vote of the majority of shares of such class or
classes present in person or represented by proxy at the meeting shall be the
act of such class, unless otherwise provided in the Company's Certificate of
Incorporation.
SECTION 9. Inspectors. Unless otherwise required by law, the
Board of Directors, in advance of any meeting, may, but need not, appoint one or
more inspectors of election to act at the meeting or any adjournment thereof. If
an inspector or inspectors are not so appointed, the person presiding at the
meeting may, but need not, appoint one or more inspectors. In case any person
who may be appointed as an inspector fails to appear or act, the vacancy may be
filled by appointment made by the directors in advance of the meeting or at the
meeting by the person presiding thereat. Each inspector, if any, before entering
upon the discharge of his or her duties, shall take and sign an oath faithfully
to execute the duties of inspector at such meeting with strict impartiality and
according to the best of his ability. The inspectors, if any, shall determine
the number of shares of stock outstanding and the voting power of each, the
shares of stock represented at the meeting, the existence of a quorum, and the
validity and effect of proxies, and shall receive votes, ballot or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents, determine the
result, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the person presiding at the meeting,
the inspector or inspectors, if any, shall make a report in writing of any
challenge, question or matter determined by such inspector or inspectors and
execute a certificate of any fact found by such inspector or inspectors.
SECTION 10. Nominating and Proposal Procedures. Without
limiting any other notice requirements imposed by law, the Certificate of
Incorporation or these Bylaws, any nomination for election to the Board of
Directors or other proposal to be presented by any stockholder at a
stockholders' meeting (the "Proponent") will be properly presented only if
written notice of the Proponent's intent to make such nomination or proposal has
been personally delivered to and otherwise in fact received by the Secretary of
the Company not later than (a) for the annual meeting, at least 150 days prior
to the anniversary date of the prior year's annual meeting, or (b) for any
special meeting, the close of business on the tenth day after notice of such
meeting is first given to stockholders; provided, however, that nothing
contained herein shall limit or restrict the right of any stockholder to present
at a stockholders' meeting any proposal made by such stockholder in accordance
with Rule 14a-8 promulgated pursuant to the Securities Exchange Act of 1934, as
amended, as it may hereafter be amended, or any successor rule. Such notice by
the Proponent to the Company shall set forth in reasonable detail information
concerning the nominee (in the case of a nomination for election to the Board of
Directors) or the substance of the proposal (in the case of any other
stockholder proposal), and shall include: (i) the name and residence address and
business address of the stockholder who intends to present the nomination or
other proposal or of any person who participates or is
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expected to participate in making such nomination and of the person or persons,
if any, to be nominated and the principal occupation or employment and the name,
type of business and address of the business, corporation or other organization
in which such employment is carried on of each such stockholder, participant and
nominee; (ii) a representation that the Proponent is a holder of record of stock
of the Company entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to present the nomination or other proposal specified
in the notice; (iii) a description of all arrangements or understandings between
the Proponent and any other person or persons (naming such person or persons)
pursuant to which the nomination or other proposal is to be made by the
Proponent; (iv) such other information regarding each proposal and each nominee
as would have been required to be included in a proxy statement filed pursuant
to the proxy rules of the Securities and Exchange Commission had the nomination
or other proposal been made by the Board of Directors; and (v) the consent of
each nominee, if any, to serve as a director of the Company if elected. Within
15 days following the receipt by the Secretary of a notice of nomination or
proposal pursuant hereto, the Secretary shall advise the Proponent in writing of
any deficiencies in the notice and of any additional information the Company is
requiring to determine the eligibility of the proposed nominee or the substance
of the proposal. A Proponent who has been notified of deficiencies in the notice
of nomination or proposal and/or of the need for additional information shall
cure such deficiencies and/or provide such additional information within 15 days
after receipt of the notice of such deficiencies and/or the need for additional
information. The presiding officer of a meeting of stockholders may, in his or
her sole discretion, refuse to acknowledge a nomination or other proposal
presented by any person that does not comply with the foregoing procedure and,
upon his or her instructions, all votes cast for such nominee or with respect to
such proposal may be disregarded.
ARTICLE III
Board of Directors
SECTION 1. General Powers. The business, property and affairs
of the Company shall be managed by, or under the direction of, the Board of
Directors.
SECTION 2. Qualification; Number; Term; Remuneration. (a) Each
director shall be at least 18 years of age. A director need not be a
stockholder, a citizen of the United States, or a resident of the State of
Delaware. The number of directors constituting the entire Board of Directors
shall be such number as may be fixed from time to time by action of the
stockholders or Board of Directors, but in no event less than one, one of whom
may be selected by the Board of Directors to be its Chairman. The use of the
phrase "entire Board of Directors" herein refers to the total number of
directors which the Company would have if there were no vacancies.
(b) Directors who are elected at an annual meeting of
stockholders, and directors who are elected in the interim to fill vacancies and
newly created directorships, shall hold office until the next annual meeting of
stockholders and until their successors are duly elected and qualified or until
their earlier resignation or removal; provided, however, that, immediately
following the consummation of a public offering by the Company of any of its
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capital stock, the Board of Directors of the Company shall be divided into three
classes (as nearly equal in number as possible), which are hereby designated
Class A, Class B and Class C, respectively. The term of office of the initial
Class A directors shall expire at the first annual meeting of stockholders or
any special meeting in lieu thereof following such public offering, the term of
office of the initial Class B directors shall expire at the second annual
meeting of stockholders or any special meeting in lieu thereof following such
public offering, and the term of office of the initial Class C directors shall
expire at the third annual meeting of stockholders or any special meeting in
lieu thereof following such public offering. At each annual meeting of
stockholders or special meeting in lieu thereof after the initial classification
of directors, directors elected to succeed those directors whose terms expire
shall be elected for a term of office to expire at the third succeeding annual
meeting of stockholders or special meeting in lieu thereof after their election
and until their successors are duly elected and qualified. Upon the addition of
any one or more new directors to the Board of Directors, which new director is
not a successor to any then current director, each such new director shall be
added in turn first to Class A, then to Class B, then to Class C, provided,
however, that the addition of any new director to one particular class may be
modified if such modification serves to more evenly distribute the number of
directors in all such classes.
(c) Directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the Company
in any other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
SECTION 3. Quorum and Manner of Voting. Except as otherwise
provided by law, a majority of the entire Board of Directors shall constitute a
quorum. A majority of the directors present, whether or not a quorum is present,
may adjourn a meeting from time to time to another time and place without
notice. The vote of the majority of the directors present at a meeting at which
a quorum is present shall be the act of the Board of Directors.
SECTION 4. Places of Meetings. Meetings of the Board of
Directors may be held at any place within or without the State of Delaware, as
may from time to time be fixed by resolution of the Board of Directors, or as
may be specified in the notice of meeting.
SECTION 5. Annual Meeting. Following the annual meeting of
stockholders, the newly elected Board of Directors shall meet for the purpose of
the election of officers and the transaction of such other business as may
properly come before the meeting. Such meeting may be held without notice
immediately after the annual meeting of stockholders at the same place at which
such stockholders' meeting is held.
SECTION 6. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times and places as the Board of Directors shall
from time to time by resolution determine. Notice need not be given of regular
meetings of the Board of Directors held at times and places fixed by resolution
of the Board of Directors. Where appropriate communication facilities are
reasonably available, any or all directors shall have the right to participate
in all or any part of a meeting of the Board of Directors, or any committee
thereof, by
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means of conference telephone or any means of communication by which all persons
participating in the meeting are able to hear each other.
SECTION 7. Special Meetings. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board, President,
Vice-Chairman or by a majority of the directors then in office.
SECTION 8. Notice of Special Meetings. A notice of the place,
date and time and the purpose or purposes of each special meeting of the Board
of Directors shall be given to each director by mailing the same at least 2 days
before the special meeting, or by telegraphing or telephoning the same or by
delivering the same personally not later than the day before the day of the
meeting.
SECTION 9. Organization. At all meetings of the Board of
Directors, the Chairman, if any, or if none or in the Chairman's absence or
inability to act the Vice-Chairman, if any, or if none or in the Vice-Chairman's
absence or inability to act the President, if any, or if none or in the
President's absence or inability to act, the Chief Operating Officer, or if none
of the foregoing is present, a chairman chosen by the directors, shall preside.
The Secretary of the Company shall act as secretary at all meetings of the Board
of Directors when present, and, in the Secretary's absence, the presiding
officer may appoint any person to act as secretary.
SECTION 10. Resignation; Removal. Any director may resign at
any time upon written notice to the Company and such resignation shall take
effect upon receipt thereof by the President or Secretary, unless otherwise
specified in the resignation. Any or all of the directors may be removed, with
or without cause, by the holders of a majority of the shares of stock
outstanding and entitled to vote for the election of directors.
SECTION 11. Vacancies. Unless otherwise provided in these
Bylaws, vacancies on the Board of Directors, whether caused by resignation,
death, disqualification, removal, an increase in the authorized number of
directors or otherwise, may be filled by the affirmative vote of a majority of
the remaining directors, although less than a quorum, or by a sole remaining
director, or at a special meeting of the stockholders, by the holders of shares
entitled to vote for the election of directors.
SECTION 12. Action by Written Consent. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if all the directors consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of
Directors.
ARTICLE IV
Committees
SECTION 1. Appointment. From time to time the Board of
Directors by a resolution adopted by a majority of the entire Board may appoint
any committee or committees
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for any purpose or purposes, to the extent lawful, which shall have powers as
shall be determined and specified by the Board of Directors in the resolution of
appointment.
SECTION 2. Procedures, Quorum and Manner of Acting. Each
committee shall fix its own rules of procedure, and shall meet where and as
provided by such rules or by resolution of the Board of Directors. Except as
otherwise provided by law, the presence of a majority of the then appointed
members of a committee shall constitute a quorum for the transaction of business
by that committee, and in every case where a quorum is present the affirmative
vote of a majority of the members of the committee present shall be the act of
the committee. Each committee shall keep minutes of its proceedings, and actions
taken by a committee shall be reported to the Board of Directors.
SECTION 3. Action by Written Consent. Any action required or
permitted to be taken at any meeting of any committee of the Board of Directors
may be taken without a meeting if all the members of the committee consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the committee.
SECTION 4. Term; Termination. In the event any person shall
cease to be a director of the Company, such person shall simultaneously
therewith cease to be a member of any committee appointed by the Board of
Directors.
ARTICLE V
Officers
SECTION 1. Officers. The Company shall have as officers, a
Chairman of the Board of Directors, a President, who shall also be the Chief
Executive Officer, a Chief Operating Officer, a Chief Financial Officer, a
Secretary and a Treasurer. The Company may also have, at the discretion of the
Board of Directors, one or more Vice Presidents, one or more assistant
secretaries, one or more assistant treasurers and such other officers as the
Board of Directors may from time to time deem proper. Any two or more offices
may be held by the same person except the offices of the President and
Secretary.
SECTION 2. Election of Officers. The officers of the Company
shall be chosen by the Board of Directors.
SECTION 3. Term of Office and Remuneration. The term of office
of all officers shall be one year and until their respective successors have
been elected and qualified, but any officer may be removed from office, either
with or without cause, at any time by the Board of Directors. Any vacancy in any
office arising from any cause may be filled for the unexpired portion of the
term by the Board of Directors. The remuneration of all officers of the Company
may be fixed by the Board of Directors or in such manner as the Board of
Directors shall provide.
SECTION 4. Resignation; Removal. Any officer may resign at any
time upon written notice to the Company and such resignation shall take effect
upon receipt thereof by the
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President or Secretary, unless otherwise specified in the resignation. Any
officer shall be subject to removal, with or without cause, at any time by vote
of a majority of the entire Board of Directors.
SECTION 5. Chairman of the Board of Directors. The Chairman of
the Board of Directors of Directors shall preside at all meetings of the Board
of Directors and the stockholders at which he or she shall be present and shall
have such other powers and duties as may from time to time be assigned by the
Board of Directors.
SECTION 6. President and Chief Executive Officer. The
President and Chief Executive Officer shall have general management and
supervision of the property, business and affairs of the Company and over its
other officers; may appoint and remove assistant officers and other agents and
employees, other than officers referred to in Section 1 of this Article V; and
may execute and deliver in the name of the Company powers of attorney,
contracts, bonds and other obligations and instruments.
SECTION 7. Chief Operating Officer. The Chief Operating
Officer shall in general supervise and control all of the business and affairs
of the Company. He or she may execute any deed, mortgage, bond, contract or
other instrument and in general shall perform all duties incident to the office
of Chief Operating Officer and such other duties as may be prescribed from time
to time by the Board of Directors or as the President may from time to time
delegate.
SECTION 8. Vice-President. A Vice-President may execute and
deliver in the name of the Company contracts and other obligations and
instruments pertaining to the regular course of the duties of said office, and
shall have such other authority as from time to time may be assigned by the
Board of Directors or the President.
SECTION 9. Chief Financial Officer.
(a) The Chief Financial Officer shall keep, or cause to be
kept, the books and records of account of the Company.
(b) The Chief Financial Officer shall deposit all monies and
other valuables in the name and to the credit of the Company with such
depositories as may be designated from time to time by resolution of the Board
of Directors. He or she shall disburse the funds of the Company as may be
ordered by the Board of Directors, shall render to the President and the Board
of Directors, whenever they request it, an account of all of his transactions as
Chief Financial Officer and of the financial condition of the Company, and shall
have such other powers and perform such other duties as may be prescribed from
time to time by the Board of Directors or as the President may from time to time
delegate.
SECTION 10. Treasurer. The Treasurer shall in general have all
duties incident to the position of Treasurer and such other duties as may be
assigned by the Board of Directors or the President.
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SECTION 11. Secretary. The Secretary shall in general have all
the duties incident to the office of Secretary and such other duties as may be
assigned by the Board of Directors or the President.
SECTION 12. Assistant Officers. Any assistant officer shall
perform the duties and have the powers and duties of the officer for whom he or
she shall assist in such officers absence and shall have such other duties as
may be assigned by the Board of Directors from time to time.
SECTION 13. Salaries. The salaries and other compensation of
the officers shall be fixed from time to time by the Board of Directors and no
officer shall be prevented from receiving such salary or other compensation by
reason of the fact that he or she is also a director.
ARTICLE VI
Books and Records
SECTION 1. Location. The books and records of the Company may
be kept at such place or places within or outside the State of Delaware as the
Board of Directors or the respective officers in charge thereof may from time to
time determine. The record books containing the names and addresses of all
stockholders, the number and class of shares of stock held by each and the dates
when they respectively became the owners of record thereof shall be kept by the
Secretary as prescribed in these Bylaws and by such officer or agent as shall be
designated by the Board of Directors.
SECTION 2. Addresses of stockholders. Notices of meetings and
all other corporate notices may be delivered personally or mailed to each
stockholder at the stockholder's address as it appears on the records of the
Company.
ARTICLE VII
Certificates Representing Stock
SECTION 1. Certificates; Signatures. The shares of the Company
shall be represented by certificates, provided that the Board of Directors of
the Company 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 Company. 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 Company by the
Chairman or Vice-Chairman of the Board of Directors, or the President or Chief
Operating Officer, and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Company, representing the number of
shares registered in certificate form. Any and all signatures on any such
certificate may be facsimiles. In case any
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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 Company with the same effect as if he were such officer, transfer agent
or registrar at the date of issue. The name of the holder of record of the
shares represented thereby, with the number of such shares and the date of
issue, shall be entered on the books of the Company.
SECTION 2. Transfers of Stock. Upon compliance with provisions
restricting the transfer or registration of transfer of shares of stock, if any,
shares of capital stock shall be transferable on the books of the Company only
by the holder of record thereof in person, or by duly authorized attorney, upon
surrender and cancellation of certificates for a like number of shares, properly
endorsed, and the payment of all taxes due thereon.
SECTION 3. Fractional Shares. The Company may, but shall not
be required to, issue certificates for fractions of a share where necessary to
effect authorized transactions, or the Company may pay in cash the fair value of
fractions of a share as of the time when those entitled to receive such
fractions are determined, or it may issue scrip in registered or bearer form
over the manual or facsimile signature of an officer of the Company or of its
agent, exchangeable as therein provided for full shares, but such scrip shall
not entitle the holder to any rights of a stockholder except as therein
provided.
The Board of Directors shall have power and authority to make
all such rules and regulations as it may deem expedient concerning the issue,
transfer and registration of certificates representing shares of the Company.
SECTION 4. Lost, Stolen or Destroyed Certificates. The Company
may issue a new certificate of stock in place of any certificate, theretofore
issued by it, alleged to have been lost, stolen or destroyed, and the Board of
Directors may require the owner of any lost, stolen or destroyed certificate, or
his legal representative, to give the Company a bond sufficient to indemnify the
Company 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 any such
new certificate.
ARTICLE VIII
Dividends
Subject always to the provisions of law and the Certificate of
Incorporation, the Board of Directors shall have full power to determine whether
any, and, if any, what part of any, funds legally available for the payment of
dividends shall be declared as dividends and paid to stockholders; the division
of the whole or any part of such funds of the Company shall rest wholly within
the lawful discretion of the Board of Directors, and it shall not be required at
any time, against such discretion, to divide or pay any part of such funds among
or to the stockholders as dividends or otherwise; and before payment of any
dividend, there may be set aside out of any funds of the Company available for
dividends such sum or sums as the Board of Directors from time to time, in its
absolute discretion, thinks proper as a reserve or reserves to meet
contingencies, or for repairing or maintaining any property of the Company, or
for such
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other purpose as the Board of Directors shall think conducive to the interest of
the Company, and the Board of Directors may modify or abolish any such reserve
in the manner in which it was created.
ARTICLE IX
Ratification
Any transaction, questioned in any law suit on the ground of
lack of authority, defective or irregular execution, adverse interest of
director, officer or stockholder, non-disclosure, miscomputation, or the
application of improper principles of practices of accounting, may be ratified
before or after judgment, by the Board of Directors or by the stockholders, and
if so ratified shall have the same force and effect as if the questioned
transaction had been originally duly authorized. Such ratification shall be
binding upon the Company and its stockholders and shall constitute a bar to any
claim or execution of any judgment in respect of such questioned transaction.
ARTICLE X
Corporate Seal
The corporate seal shall have inscribed thereon the name of
the Company and the year of its incorporation, and shall be in such form and
contain such other words and/or figures as the Board of Directors shall
determine. The corporate seal may be used by printing, engraving, lithographing,
stamping or otherwise making, placing or affixing, or causing to be printed,
engraved, lithographed, stamped or otherwise made, placed or affixed, upon any
paper or document, by any process whatsoever, an impression, facsimile or other
reproduction of said corporate seal.
ARTICLE XI
Indemnification and Insurance
SECTION 1. Right to Indemnification. The Company shall
indemnify and hold harmless, to the fullest extent permitted by law as it
presently exists or may hereafter be amended, any person who was or is made or
is threatened to be made a party or is otherwise involved in any action or suit,
whether or not by or in the right of the Company, or proceeding, whether civil,
criminal, administrative or investigative (collectively, a "proceeding") by
reason of the fact that he, or a person for whom he is the legal representative,
is or was a director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation or of a partnership, joint venture, trust, enterprise or
nonprofit entity, including service with respect to employee benefit plans,
against all liability and loss, including judgments, fines, ERISA excise taxes
or penalties and amounts paid
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or to be paid in settlement, incurred, suffered or paid by or on behalf of such
person, and expenses (including attorneys' fees) reasonably incurred by such
person.
SECTION 2. Prepayment of Expenses. The Company shall pay the
expenses (including attorneys' fees) incurred in defending any proceeding in
advance of its final disposition, provided, however, that the payment of
expenses incurred by a director or officer in advance of the final disposition
of the proceeding shall be made only upon receipt of an undertaking by the
director or officer to repay all amounts advanced if it should be ultimately
determined that the director or officer is not entitled to be indemnified under
this Article XI or otherwise.
SECTION 3. Claims. The right to indemnification and payment of
expenses under the Certificate of Incorporation, these Bylaws or otherwise shall
be a contract right. If a claim for indemnification or payment of expenses under
this Article XI is not paid in full within 60 days after a written claim
therefor has been received by the Company, the claimant may file suit to recover
the unpaid amount of such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim. In any such action
the Company shall have the burden of proving that the claimant was not entitled
to the requested indemnification or payment of expenses under applicable law.
SECTION 4. Non-Exclusivity of Rights. The rights conferred on
any person by this Article XI shall not be exclusive of any other rights which
such person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, these Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
SECTION 5. Other Indemnification. The Company's obligation, if
any, to indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, enterprise or nonprofit entity shall be reduced by any amount such person
may collect as indemnification from such other corporation, partnership, joint
venture, trust, enterprise or nonprofit enterprise.
SECTION 6. Insurance. The Board of Directors may cause the
Company to purchase and maintain insurance on behalf of any person who is or was
a director or officer of the Company or is or was serving at the request of the
Company as a director or officer of another corporation, or as a representative
in a partnership, joint venture, trust or other enterprise against any liability
asserted against such person and incurred in any such capacity or arising out of
such status, whether or not the Company would have the power to indemnify such
person.
SECTION 7. Amendment or Repeal. Any repeal or modification of
the foregoing provisions of this Article XI shall not adversely affect any right
or protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
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ARTICLE XII
Fiscal Year
The fiscal year of the Company shall be that which is
determined by the Board of Directors, and is subject to change by the Board of
Directors.
ARTICLE XIII
Waiver of Notice
Whenever notice is required to be given by these Bylaws or by
the Certificate of Incorporation or by law, a written waiver thereof, signed by
the person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to notice.
ARTICLE XIV
Bank Accounts, Drafts, Contracts, Etc.
SECTION 1. Bank Accounts and Drafts. In addition to such bank
accounts as may be authorized by the Board of Directors, the Treasurer or any
person designated by the Treasurer, whether or not an employee of the Company,
may authorize such bank accounts to be opened or maintained in the name and on
behalf of the Company as he or she may deem necessary or appropriate, payments
from such bank accounts to be made upon and according to the check of the
Company in accordance with the written instructions of the Treasurer, or other
person so designated by the Treasurer.
SECTION 2. Contracts. The Board of Directors may authorize any
person or persons, in the name and on behalf of the Company, to enter into or
execute and deliver any and all deeds, bonds, mortgages, contracts and other
obligations or instruments, and such authority may be general or confined to
specific instances.
SECTION 3. Proxies; Powers of Attorney; Other Instruments. The
Chairman, the President or any other person designated by either of them shall
have the power and authority to execute and deliver proxies, powers of attorney
and other instruments on behalf of the Company in connection with the rights and
powers incident to the ownership of stock by the Company. The Chairman, the
President or any other person authorized by proxy or power of attorney executed
and delivered by either of them on behalf of the Company may attend and vote at
any meeting of stockholders of any company in which the Company may hold stock,
and may exercise on behalf of the Company any and all of the rights and powers
incident to the ownership of such stock at any such meeting, or otherwise as
specified in the proxy or power of attorney so authorizing any such person. The
Board of Directors, from time to time, may confer like powers upon any other
person.
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SECTION 4. Financial Reports. The Board of Directors may
appoint the Chief Financial Officer, Treasurer, or other fiscal officer and/or
the Secretary or any other officer to cause to be prepared and furnished to
stockholders entitled thereto any special financial notice and/or financial
statement, as the case may be, which may be required by any provision of law.
ARTICLE XV
Amendments
The Board of Directors of the Company is expressly authorized
to adopt, amend or repeal these Bylaws of the Company, subject, however, to any
limitation thereof contained in these Bylaws. Bylaws adopted by the Board of
Directors may be repealed or changed, and new Bylaws made, by the stockholders,
and the stockholders may prescribe that any Bylaw made by them shall not be
altered, amended or repealed by the Board of Directors. The stockholders also
shall have the power to adopt, amend or repeal the Bylaws of the Company;
provided, however, that, immediately following the consummation of a public
offering by the Company of any of its capital stock, (a) except as set forth
below in clause (b), in addition to any vote of the holders of any class or
series of stock of the Company required by law or by the Certificate of
Incorporation, the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the voting power of all of the then outstanding
shares of the capital stock of the Company entitled to vote generally in the
election of directors, voting together as a single class, shall be required to
adopt, amend or repeal any provision of these Bylaws of the Company; and (b) in
addition to any vote of the holders of any class or series of stock of the
Company required by law or by the Certificate of Incorporation, the affirmative
vote of the holders of at least eighty percent (80%) of the voting power of all
of the then outstanding shares of the capital stock of the Company entitled to
vote generally in the election of directors, voting together as a single class,
shall be required to adopt, amend or repeal any provision of ARTICLE XI
"Indemnification and Insurance" or ARTICLE III Section 2(b) hereof.
-END OF BYLAWS-
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