Exhibit 3(ii)(b)
MERRIMAC INDUSTRIES, INC.
BY-LAWS
ARTICLE I - STOCKHOLDERS
Section 1. Annual Meeting.
(1) 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 (13) months of the last annual meeting
of stockholders.
(2) Nominations of persons for election to the Board of
Directors and the proposal of business to be transacted by the stockholders may
be made at an annual meeting of stockholders (a) pursuant to the Corporation's
notice with respect to such meeting, (b) by or at the direction of the Board of
Directors or (c) by any stockholder of record of the Corporation who was a
stockholder of record at the time of the giving of the notice provided for in
the following paragraph, who is entitled to vote at the meeting and who has
complied with the notice procedures set forth in this section.
(3) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of the
foregoing paragraph, (1) the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation, (2) such business must be a
proper matter for stockholder action under the General Corporation Law of the
State of Delaware, (3) if the stockholder, or the beneficial owner on whose
behalf any such proposal or nomination is made, has provided the Corporation
with a Solicitation Notice, as that term is defined in subclause (c)(iii) of
this paragraph, such stockholder or beneficial owner must, in the case of a
proposal, have delivered a proxy statement and form of proxy to holders of at
least the percentage of the Corporation's voting shares required under
applicable law to carry any such proposal, or, in the case of a nomination or
nominations, have delivered a proxy statement and form of proxy to holders of a
percentage of the Corporation's voting shares reasonably believed by such
stockholder or beneficial holder to be sufficient to elect the nominee or
nominees proposed to be nominated by such stockholder, and must, in either case,
have included in such materials the Solicitation Notice and (4) if no
Solicitation Notice relating thereto has been timely provided pursuant to this
section, the stockholder or beneficial owner proposing such business or
nomination must not have solicited a number of proxies sufficient to have
required the delivery of such a Solicitation Notice under this section. To be
timely, a stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 60th day
nor earlier than the close of business on the 90th day prior to the first
anniversary (the "Anniversary") of the preceding year's annual meeting of
stockholders; provided, however, that if the date of the annual meeting is
advanced more than 30 days prior to or delayed by more than 60 days after the
anniversary of the preceding year's annual meeting, notice by the stockholder to
be timely must be so delivered not earlier than the close of business on the
90th day prior to such annual meeting and not later than the close of business
on the later of (i) the 60th day prior to such annual meeting or (ii) the 10th
day following the day on which public announcement of the date of such meeting
is first made by the Corporation. Such stockholder's notice shall set forth (a)
as to each person whom the stockholder proposes to nominate for election or
reelection as a director all information relating to such person as would be
required to be disclosed in solicitations of proxies for the election of such
nominees as directors pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and such person's written consent
to serve as a director if elected; (b) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of such
business, the reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and the beneficial owner,
if any, on whose behalf the proposal is made; (c) as to the stockholder giving
the notice and the beneficial owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such stockholder, as they appear on
the Corporation's books, and of such beneficial owner, (ii) the class and number
of shares of the Corporation that are owned beneficially and of record by such
stockholder and such beneficial owner, and (iii) whether either such stockholder
or beneficial owner intends to deliver a proxy statement and form of proxy to
holders of, in the case of a proposal, at least the percentage of the
Corporation's voting shares required under applicable law to carry the proposal
or, in the case of a nomination or nominations, a sufficient number of holders
of the Corporation's voting shares to elect such nominee or nominees (an
affirmative statement of such intent, a "Solicitation Notice").
(4) Notwithstanding anything in the second sentence of the
third paragraph of this Section 1 to the contrary, in the event that the number
of directors to be elected to the Board of Directors is increased and there is
no public announcement naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the Corporation at least 55
days prior to the Anniversary, a stockholder's notice required by this Bylaw
shall also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary at
the principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the Corporation.
(5) Only persons nominated in accordance with the procedures
set forth in this Section 1 shall
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be eligible to serve as directors and only such business shall be conducted at
an annual meeting of stockholders as shall have been brought before the meeting
in accordance with the procedures set forth in this section. The chairman of the
meeting shall have the power and the duty to determine whether a nomination or
any business proposed to be brought before the meeting has been made in
accordance with the procedures set forth in these By-laws and, if any proposed
nomination or business is not in compliance with these By-laws, to declare that
such defectively proposed business or nomination shall not be presented for
stockholder action at the meeting and shall be disregarded.
(6) For purposes of these By-laws, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or a comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(7) Notwithstanding the foregoing provisions of this Section 1,
a stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to matters set forth
in this Section 1. Nothing in this Section 1 shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 2. Special Meetings.
(1) Special meetings of the stockholders, other than those
required by statute, may be called at any time by the Chairman of the Board, the
President or by the Board of Directors acting pursuant to a resolution adopted
by a majority of the directors then in office. It shall also be a duty of the
Chairman of the Board or, in his or her absence, of the President or, in his or
her absence, of any Vice President, to call such special meetings whenever so
requested in writing by stockholders owing a majority of the shares of capital
stock entitled to vote at such meeting. The Board of Directors may postpone or
reschedule any previously scheduled special meeting.
(2) Only such business shall be conducted at a special meeting
of stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Nominations of persons for election to the
Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of meeting (a)
by or at the direction of the Board of Directors or (b) by any stockholder of
record of the Corporation who is a stockholder of record at the time of giving
of notice provided for in this paragraph, who shall be entitled to vote at the
meeting and who complies with the notice procedures set forth in Section 1 of
this Article I. Nominations by stockholders of persons for election to the Board
of Directors
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may be made at such a special meeting of stockholders if the stockholder's
notice required by the third paragraph of Section 1 of this Article I shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the 90th day prior to such special
meeting and not later than the close of business on the later of (i) the 60th
day prior to such special meeting or (ii) the 10th day following the day on
which public announcement is first made by the Corporation of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting.
(3) Notwithstanding the foregoing provisions of this Section 2,
a stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to matters set forth
in this Section 2. Nothing in this Section 2 shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 3. Notice of Meetings.
Notice of the place, if any, date, and time of all meetings of
the stockholders, and the means of remote communications, if any, by which
stockholders and proxyholders may be deemed to be present in person and vote at
such meeting, shall be given, not less than ten (10) nor more than sixty (60)
days before the date on which the meeting is to be held, 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 time or place, notice need
not be given of the adjourned meeting if the time and place, if any, thereof,
and the means of remote communications, if any, by which stockholders and
proxyholders may be deemed to be present in person and vote at such adjourned
meeting 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, notice of the place, if any,
date, and time of the adjourned meeting and the means of remote communications,
if any, by which stockholders and proxyholders may be deemed to be present in
person and vote at such 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.
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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. Where
a separate vote by a class or classes or series is required, a majority of the
shares of such class or classes or series present in person or represented by
proxy shall constitute a quorum entitled to take action with respect to that
vote on that matter.
If a quorum shall fail to attend any meeting, the chairman of the
meeting may adjourn the meeting to another place, if any, date, or time.
Section 5. Organization.
Such person as the Board of Directors may have designated or, in
the absence of such a person, the Chairman of the Board or, in his or her
absence, the President of the Corporation or, in his or her absence, such person
as may be chosen by the holders of a majority of the shares entitled to vote who
are present, in person or by proxy, shall call to order any meeting of the
stockholders and act as chairman of the meeting. In the absence of the Secretary
of the Corporation, the secretary of the meeting shall be such person as the
chairman of the meeting appoints.
Section 6. 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 discussion as seem to him or her in
order. The chairman shall have the power to adjourn the meeting to another
place, if any, date and time. The date and time of the opening and closing of
the polls for each matter upon which the stockholders will vote at the meeting
shall be announced at the meeting.
Section 7. 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 or by
a transmission permitted by law filed in accordance with the procedure
established for the meeting. Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission created pursuant to this
paragraph may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or
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other reproduction shall be a complete reproduction of the entire original
writing or transmission.
The Corporation may, and to the extent required by law, shall, in
advance of any meeting of stockholders, appoint one or more inspectors to act at
the meeting and make a written report thereof. The Corporation may designate one
or more alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the person
presiding at the meeting may, and to the extent required by law, shall, appoint
one or more inspectors to act at the meeting. Each inspector, before entering
upon the discharge of his or her duties, shall take and sign an oath faithfully
to execute the duties of inspector with strict impartiality and according to the
best of his or her ability. Every vote taken by ballots shall be counted by a
duly appointed inspector or inspectors. On request of the chairman of the
meeting, the inspectors shall produce a report in writing of any challenge,
question or matter determined by them and execute a certificate with respect to
any fact found by them.
All elections shall be determined by a plurality of the votes
cast, and except as otherwise required by law, all other matters shall be
determined by a majority of the votes cast affirmatively or negatively.
Section 8. 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 the 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
a period of at least 10 days prior to the meeting in the manner provided by law.
The stock list shall also be open to the examination of any
stockholder during the whole time of the meeting as provided by law. This list
shall conclusively determine the identity of the stockholders entitled to
examine such list and entitled to vote at the meeting and the number of shares
held by each of them.
ARTICLE II - BOARD OF DIRECTORS
Section 1. Number, Election and Term of Directors.
Subject to the rights of the holders of any series of preferred
stock to elect directors under specified circumstances, the number of directors
shall be fixed from time to time exclusively by the Board of Directors pursuant
to a resolution adopted by a majority of the Whole Board, provided that the
number of directors of the Corporation shall not be less than three (3). For
purposes of these By-laws, the term "Whole Board"
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shall mean the total number of authorized directors, whether or not there exist
any vacancies in previously authorized directorships. The directors, other than
those who may be elected by the holders of any series of preferred stock under
specified circumstances, shall be divided, with respect to the time for which
they severally hold office, into three classes, designated Class I, Class II and
Class III, with the term of office of Class I to expire at the Corporation's
first annual meeting of stockholders, the term of office of Class II to expire
at the Corporation's second annual meeting of stockholders and the term of
office of Class III to expire at the Corporation's third annual meeting of
stockholders, with each director to hold office until his or her successor shall
have been duly elected and qualified. At each annual meeting of stockholders,
(i) directors elected to succeed those directors whose terms then expire shall
be elected for a term of office to expire at the third succeeding annual meeting
of stockholders after their election, with each director to hold office until
his or her successor shall have been duly elected and qualified, and (ii) if
authorized by a resolution of the Board of Directors, directors may be elected
to fill any vacancy on the Board of Directors, regardless of how such vacancy
shall have been created.
Section 2. Newly Created Directorships and Vacancies.
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
resulting from death, resignation, retirement, disqualification, removal from
office or other cause shall, unless otherwise required by law or by resolution
of the Board of Directors, be filled only by a majority vote of the directors
then in office, though less than a quorum (and not by stockholders), or by a
sole remaining director, 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 and until such director's
successor shall have been duly elected and qualified. No decrease in the number
of authorized directors shall shorten the term of any incumbent director.
Section 3. 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 4. Special Meetings.
Special meetings of the Board of Directors may be called by the
Chairman of the Board, the President or by a one-third or more of the Whole
Board and shall be
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held at such place, on such date, and at such time as they or he or she shall
fix. Notice of the place, date, and time of each such special meeting shall be
given to each director by whom it is not waived by mailing written notice not
less than forty-eight (48) hours before the meeting or by telephone or by
telegraphing or telexing or by facsimile or electronic transmission of the same
not less 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 5. Quorum.
At any meeting of the Board of Directors, a majority of the
directors then in office shall constitute a quorum for all purposes; provided
that a quorum shall not be less than one-third of the number of directors
constituting the Whole Board. 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 6. 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 of Directors or committee by means of
conference telephone or other 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 7. Conduct of Business.
At any meeting of the Board of Directors, business shall be
transacted in such order and manner as the Board of Directors 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 or by electronic transmission, and the
writing or writings or electronic transmission or transmissions are filed with
the minutes of proceedings of the Board of Directors. Such filing shall be in
paper form if the minutes are maintained in paper form and shall be in
electronic form if the minutes are maintained in electronic form.
Section 8. Compensation of Directors.
Unless otherwise restricted by the certificate of incorporation,
the Board of Directors shall have the authority to fix the compensation of the
directors. The 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
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Directors or paid a stated salary or paid other compensation as director. No
such payment shall preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed compensation for attending committee
meetings.
ARTICLE III - COMMITTEES
Section 1. Committees of the Board of Directors.
The Board of Directors may from time to time designate committees
of the Board of Directors, with such lawfully delegable powers and duties as it
thereby confers, to serve at the pleasure of the Board of Directors 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. In the absence or disqualification of any
member of any committee and any alternate member in his or her place, the member
or members of the committee present at the meeting and not disqualified from
voting, whether or not he or she 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 (1/3) of the members shall
constitute a quorum (unless a committee consists of less than three (3)
directors, in which case one (1) director shall constitute a quorum); and all
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 or by electronic transmission, and the writing or writings or
electronic transmission or transmissions are filed with the minutes of the
proceedings of such committee. Such filing shall be in paper form if the minutes
are maintained in paper form and shall be in electronic form if the minutes are
maintained in electronic form.
Section 3. Powers.
Any committee, to the extent provided in the resolution of the
Board of Directors, shall have and may exercise all the powers and authority of
the board in the management of the business and affairs of the Corporation,
except that no committee shall have the power or authority in reference to (i)
approving or adopting, or
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recommending to the stockholders, any action or matter expressly required by the
Delaware General Corporation Law to be submitted to stockholders for approval or
(ii) adopting, amending or repealing any By-law of the Corporation.
ARTICLE IV - OFFICERS
Section 1. Generally.
The officers of the Corporation shall consist of a Chairman of
the Board, a President, one or more Vice Presidents, a Secretary, a Treasurer
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 or may be elected as otherwise provided herein. Each officer shall
hold office until his or her successor is elected and qualified or until his or
her earlier resignation or removal. Any number of offices may be held by the
same person. The salaries of officers elected by the Board of Directors shall be
fixed from time to time by the Board of Directors or by such officers as may be
designated by resolution of the Board of Directors.
Section 2. Chairman of the Board.
The Chairman of the Board shall have such duties and powers as
shall be designated from time to time by the Board of Directors. Unless the
Board of Directors specifies otherwise, the Chairman of the Board (or, if there
is none, the chief executive officer) shall preside, or designate a person who
shall preside, at all meetings of the stockholders and the Board of Directors.
Section 3. President.
Unless the Board of Directors specifies otherwise, the
President shall be the chief executive officer of the Corporation and, subject
to the control of the directors, shall have general charge and supervision of
the business and affairs of the Corporation.
Section 4. Vice President.
Each Vice President shall have such powers and duties as may be
delegated to him or her by the Board of Directors or by the President. One (1)
or more Vice Presidents may be designated Executive Vice President or Senior
Vice President. In the event of the President's absence or disability, one (1)
or more Vice Presidents shall be designated by the Board of Directors to perform
the duties and exercise the powers of the President.
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Section 5. Treasurer and Assistant Treasurers.
The Treasurer shall be the chief financial officer of the
Corporation and shall be in charge of its books of account, accounting records
and accounting procedures. He or she shall be responsible for the verification
of all of the assets of the Corporation and the preparation of all tax returns
and other financial reports to governmental agencies by the Corporation. He or
she shall also have the care and custody of the funds and securities of the
Corporation, sign checks, drafts, notes and orders for the payment of money, pay
out and dispose of the funds and securities of the Corporation and in general
perform the duties customary to the office of Treasurer. The Treasurer may have
such additional duties and powers as may be designated from time to time by the
Board of Directors or the President. He or she shall be responsible to and shall
report to the Board of Directors but, in the ordinary conduct of the
Corporation's business, shall be under the supervision of the President or such
other officer as the Board of Directors shall designate.
The Corporation may have one (1) or more Assistant Treasurers.
Any Assistant Treasurer shall have such duties and powers as shall be designated
from time to time by the Board of Directors, the President or the Treasurer.
Section 6. Secretary and Assistant Secretaries.
The Secretary shall (a) keep the minutes of the meetings of the
Board of Directors, the stockholders and any committee designated by the Board
of Directors; (b) see that all required notices of meetings of the directors,
stockholders and members of such committees are duly given in accordance with
the provisions of these By-laws or affix and attest the same to all instruments
requiring the seal when authorized by the Board of Directors or the President.
He or she shall also have charge of the corporate records and such books and
papers as the Board of Directors may specify from time to time and shall perform
all other duties incident to the office of Secretary or which may be assigned to
him or her from time to time by the Board of Directors or the President. In the
absence of the Secretary from any meeting, an assistant secretary, or if there
be none or he or she is absent, a temporary secretary chosen at the meeting,
shall record the proceedings thereof. Unless a transfer agent has been
appointed, the Secretary shall keep or cause to be kept the stock and transfer
records of the Corporation, which shall contain the names and record addresses
of all stockholders and the number of shares registered in the name of each
stockholder. He or she shall have such other duties and powers as may from time
to time be designated by the Board of Directors or the President.
The Corporation may have one (1) or more Assistant Secretaries.
Any Assistant Secretary shall have such duties and powers as shall be designated
from time to time by the Board of Directors, the President or the Secretary.
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Section 7. 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 8. Removal.
Any officer of the Corporation may be removed at any time, with
or without cause, by the Board of Directors.
Section 9. Action with Respect to Securities of Other
Corporations.
Unless otherwise directed by the Board of Directors, the
President or any officer of the Corporation authorized by the President 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.
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 President or a
Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer
or an Assistant Treasurer, certifying the number of shares owned by him or her.
Any or all of the signatures on the certificate may be by 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.
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Section 3. Record Date.
In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders, or to receive
payment of any dividend or other distribution or allotment of any rights or 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, except
as otherwise required by law, fix a record date, which record date shall not
precede the date on which the resolution fixing the record date is adopted and
which record date shall not be more than sixty (60) nor less than ten (10) days
before the date of any meeting of stockholders, nor more than sixty (60) days
prior to the time for such other action as hereinbefore described; provided,
however, that if no record date is fixed by the Board of Directors, the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding the
day on which notice is given or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held, and, for
determining stockholders entitled to receive payment of any dividend or other
distribution or allotment of rights or to exercise any rights of change,
conversion or exchange of stock or for any other purpose, the record date shall
be at the close of business on the day on which the Board of Directors adopts a
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 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.
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ARTICLE VI - NOTICES
Section 1. Notices.
If mailed, notice to stockholders shall be deemed given when
deposited in the mail, postage prepaid, directed to the stockholder at such
stockholder's address as it appears on the records of the Corporation. Without
limiting the manner by which notice otherwise may be given effectively to
stockholders, any notice to stockholders may be given by electronic transmission
in the manner provided in Section 232 of the Delaware General Corporation Law.
Section 2. Waivers.
A written waiver of any notice, signed by a stockholder or
director, or waiver by electronic transmission by such person, whether given
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 person. Neither the
business nor the purpose of any meeting need be specified in such a waiver.
Attendance at any meeting shall constitute waiver of notice except attendance
for the sole purpose of objecting to the timeliness of notice.
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 Treasurer or by an Assistant
Secretary or Assistant Treasurer.
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 or her duties, be fully protected in relying in good faith
upon the books of account or other records of the Corporation and upon such
information, opinions, reports or statements presented to the Corporation by any
of its officers or employees, or committees of the
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Board of Directors so designated, or by any other person as to matters which
such director or committee member reasonably believes are within such other
person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Corporation.
Section 4. Fiscal Year.
The fiscal year of the Corporation shall be the 52-week or
53-week period beginning on or about the 1st day of January and ending on the
Saturday closest to the 31st day of December, or such other period as may be
fixed by the Board of Directors.
Section 5. Time Periods.
In applying any provision of these By-laws which requires that an
act be done or not be 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.
Section 6. Resignations and Removals.
Any director or officer may resign at any time by delivering his
resignation in writing to the Chairman of the Board, the President, or the
Secretary or to a meeting of the Board of Directors. Such resignation shall be
effective upon receipt unless specified to be effective at some other time, and
without, in either case, the necessity of its being accepted unless the
resignation shall so state. Subject to the rights of the holders of any series
of the preferred stock then outstanding, a director (including persons elected
by directors to fill vacancies in the Board) may be removed from office at any
time, but only for cause and by the vote of the holders of at least a majority
of the shares issued and outstanding and entitled to vote in the election of
directors, voting together as a single class. The Board of Directors may at any
time remove any officer either with or without cause. The Board of Directors may
at any time terminate or modify the authority of any agent. No director or
officer resigning and (except where a right to receive compensation shall be
expressly provided in a duly authorized written agreement with the Corporation)
no director or officer removed shall have any right to any compensation as such
director or officer for any period following his resignation or removal, or, to
the fullest extent permitted by law, any right to damages on account of such
removal, whether his compensation be by the month or by the year or otherwise;
unless, in the case of a resignation, the directors, or, in the case of removal,
the body acting on the removal, shall in their or its discretion provide for
compensation.
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Section 7. Vacancies.
If any office of any officer of the Corporation elected by the
Board of Directors becomes vacant, the directors may elect a successor by vote
of a majority of the directors then in office. If the office of any other
officer becomes vacant, any person or body empowered to elect or appoint that
officer may elect or appoint a successor. Each such successor shall hold office
of the unexpired term, and in the case of the Chairman, the President, the
Treasurer and the Secretary, until his or her successor is chosen and qualified
or in each case until he or she sooner dies, resigns, is removed or becomes
disqualified. Any vacancy of a directorship shall be filled as specified in
Article II of these By-laws.
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 otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a director or an
officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer or trustee of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (hereinafter an "indemnitee"), whether the
basis of such proceeding is alleged action in an official capacity as a
director, officer or trustee or in any other capacity while serving as a
director, officer or trustee, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware General Corporation
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 such law permitted the
Corporation to provide prior to such amendment), against all expense, liability
and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid in settlement) reasonably incurred or suffered by
such indemnitee in connection therewith; provided, however, that, except as
provided in Section 3 of this ARTICLE VIII with respect to proceedings to
enforce rights to indemnification, the Corporation shall indemnify any such
indemnitee in connection with a proceeding (or part thereof) initiated by such
indemnitee only if such proceeding (or part thereof) was authorized by the Board
of Directors of the Corporation.
Section 2. Right to Advancement of Expenses.
In addition to the right to indemnification conferred in Section
1 of this ARTICLE VIII, an indemnitee shall also have the right to be paid by
the Corporation the
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expenses (including attorney's fees) incurred in defending any such proceeding
in advance of its final disposition (hereinafter an "advancement of expenses");
provided, however, that, if the Delaware General Corporation Law requires, an
advancement of expenses incurred by an indemnitee 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 indemnitee, including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the Corporation of an
undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee,
to repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal (hereinafter a
"final adjudication") that such indemnitee is not entitled to be indemnified for
such expenses under this Section 2 or otherwise.
Section 3. Right of Indemnitee to Bring Suit.
If a claim under Section 1 or 2 of this ARTICLE VIII is not paid
in full by the Corporation within sixty (60) days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be twenty (20) days, the
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in any
such suit, or in a suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the indemnitee shall be
entitled to be paid also the expense of prosecuting or defending such suit. In
(i) any suit brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) in any suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the Corporation shall be entitled to recover such
expenses upon a final adjudication that, the indemnitee has not met any
applicable standard for indemnification set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including its directors
who are not parties to such action, a committee of such directors, independent
legal counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is proper in
the circumstances because the indemnitee has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its directors who are not parties to
such action, a committee of such directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the
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indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this ARTICLE VIII or otherwise shall be on the Corporation.
Section 4. Non-Exclusivity of Rights.
The rights to indemnification and to the advancement of expenses
conferred in this ARTICLE VIII shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, the Corporation's
Certificate of Incorporation, By-laws, agreement, vote of stockholders or
directors or otherwise.
Section 5. Insurance.
The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any 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. Indemnification of Employees and Agents of the
Corporation.
The Corporation may, to the extent authorized from time to time
by the Board of Directors, grant rights to indemnification and to the
advancement of expenses to any employee or agent of the Corporation to the
fullest extent of the provisions of this Article with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
Section 7. Nature of Rights.
The rights conferred upon indemnitees in this ARTICLE VIII shall
be contract rights and such rights shall continue as to an indemnitee who has
ceased to be a director, officer or trustee and shall inure to the benefit of
the indemnitee's heirs, executors and administrators. Any amendment, alteration
or repeal of this ARTICLE VIII that adversely affects any right of an indemnitee
or its successors shall be prospective only and shall not limit or eliminate any
such right with respect to any proceeding involving any occurrence or alleged
occurrence of any action or omission to act that took place prior to such
amendment or repeal.
ARTICLE IX - AMENDMENTS
In furtherance and not in limitation of the powers conferred by
law, the Board of Directors is expressly authorized to adopt, amend and repeal
these By-laws subject to the power of the holders of capital stock of the
Corporation to adopt, amend or repeal the By-laws; provided, however, that, with
respect to the power of holders of
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capital stock to adopt, amend and repeal By-laws of the Corporation,
notwithstanding any other provision of these By-laws or any provision of law
which might otherwise permit a lesser vote or no vote, but in addition to any
affirmative vote of the holders of any particular class or series of the capital
stock of the Corporation required by law, these By-laws or any preferred stock,
the affirmative vote of the holders of at least eighty percent (80%) of the
voting power of all of the then-outstanding shares 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 By-laws.
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